Torture (Damages) Bill [HL]

– in the House of Lords on 16th May 2008.

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Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

My Lords, I beg to move that this Bill be now read a second time. Of all the ways in which one human being may mistreat another, there can be none which evokes greater loathing and greater condemnation than torture. That is reflected in a number of international instruments, particularly in the United Nations torture convention of 1985.

This is not the occasion to weary your Lordships with a debate about the construction of all the convention's provisions, but there can be no room for argument that all members of the United Nations have an obligation not merely to abstain from torture but actively to do what they can to prevent it.

Article 14 of the convention declares:

"Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation".

There has been an ongoing dispute as to how widely that obligation extends, but it is not a debate which need trouble your Lordships for two reasons. First, the case for the Bill does not rest on any obligation in an international instrument. It is enough that most of us, I hope, recognise a moral obligation to extend what protection and relief we can to those who have suffered torture. Secondly, this country has already taken steps, in Section 134 of the Criminal Justice Act 1988, to provide that a person who commits torture anywhere—I emphasise, anywhere—is guilty of a criminal offence in English law and liable to imprisonment for life. So there is no doubt as to the view which the people of this country take on torture.

But there is a problem. The criminal courts of this country can impose an effective sentence only if the torturer is within the jurisdiction. The intention behind Section 134 was that a torturer should have nowhere to hide, but if he goes to earth in his own country and the Government there do not wish to see him answer for what he did, the international community may have to stand and watch the sneer on his face as he defies justice.

It is principally that problem which the Bill seeks to address—and there is a solution. Many torturers are agents of their Government, or the offender may be the Government themselves. States, senior Ministers and officials may well have assets in this country; indeed, they may have to maintain assets in this country for commercial reasons. The Bill provides the victim with a right to bring a civil action for damages in this country. If he obtains judgment, execution may be levied against any assets which the offender may have here.

If we provide that right, it may achieve two things. First, it may afford the victim some reparation for what he or she has suffered and help in coming to terms with the suffering. Secondly, the knowledge that reparation may be exacted may help to serve as a deterrent to potential torturers.

That, simply, is the case for the Bill. So what may be said against it? I must be cautious in anticipating what my noble friend the Minister may wish to say at the close of the debate. Indeed, knowing him as I do, I recognise that accusing him of wishing to say it may not be fair, but it may be in his brief.

First, it may be said that the victim should seek reparation in the jurisdiction where the torture took place, but I credit my noble friend with a greater sense of realism. In countries where torture takes place, even if the law appears to provide a remedy, officials and Ministers there may do everything possible to ensure that the case does not proceed to judgment or, if it does, that the truth may disappear behind perjured evidence. To seek justice in the country where the offence took place, the victim may have to return there to pursue his remedy. And that is to invite a repetition of the experience.

Secondly, we may be warned that if this country offers a remedy to all who have suffered, our courts may be submerged under a flood of cases. That is an argument that we encounter whenever we seek to internationalise the rule of law. The first comment to be made on that is that the courts apply the doctrine which lawyers call forum non conveniens.

The first port of call for a remedy is usually the jurisdiction where the act took place, and if that jurisdiction provides a genuine and effective remedy, the courts of this country will normally decline to hear the case, leaving the aggrieved party to his remedy elsewhere. Indeed, that doctrine is written into the Bill, in Clause 1(2). But if there is no genuine remedy in the jurisdiction where the act took place, to refuse a remedy in this country would be to deny the victim any remedy. It would be to pass by on the other side. Indifference is not far from encouragement. To argue whose business it is to rectify so appalling a wrong is unworthy. There are some wrongs that are the business of all humanity. In fact, there is little evidence that there would be a flood of cases out of proportion to the normal business of the courts, but even if there were, to deny any redress to a victim of torture would be a curious sense of priorities.

The third argument that could be advanced is that the proposal would be to legislate extraterritorially. I am not sure whether that is so. It would be legislating about what is to happen in this country in consequence of a wrong committed somewhere else. Of course, legislating about what happened in the territory of another state can be provocative, and may be resented, and can be justified only in exceptional circumstances. But there can be few circumstances more exceptional than torture. If, as I believe, it is condemned by the whole civilised world, and preventing it or affording redress for the victims calls for international co-operation, it is difficult to see which Government would resist measures across national boundaries to achieve that common purpose. A Government who announced that they wanted to see torture going unredressed and torturers defying justice would expose themselves to international contempt. I would not presume to offer that view on my own authority, but it represents an international consensus, embodied in Article 14 of the convention. This country has already done it, in Section 134 of the Criminal Justice Act 1988. I know of no relevant distinction for this purpose between criminal and civil proceedings. Article 14 makes no such distinction.

The final objection that I ought to mention is the doctrine of state immunity. It is a defence that a foreign state or agent of a state may raise if he or it is called on to face proceedings in the courts of this country. The State Immunity Act 1978 confers immunity from proceedings in the courts of this country on any foreign state, head of state, its Governments or departments of government. The Act then sets out certain proceedings to which the general exception does not apply. For example, there is no immunity from proceedings in commercial matters, yet, at present, claims for reparations for torture may be denied.

There has been a substantial amount of judicial guidance as to the present position, and if any noble Lord wishes to pursue the subject, probably the leading case is Jones v Saudi Arabia, reported in the United Kingdom House of Lords cases for 2006 at page 26. In that case, the Appellate Committee of your Lordships' House held that state immunity applies to proceedings for torture. Of course, it is not disputed that that represents the present law, but the purpose of legislation is to change the law and that is the purpose of the Bill.

The Bill would add one more category of case to the list of exceptions in the State Immunity Act. It would remove immunity from proceedings under the Bill. That may evoke some criticism from states that may wish to claim immunity from proceedings for torture, but the doctrine of state immunity was never designed as a shield for torturers. The proposal would send a signal about where this country stands on torture.

I must place on record my debt of gratitude to Redress, all of whose staff have been tirelessly generous with their time in offering me support, advice and research. I am grateful, too, for the help and advice of Amnesty International, Justice, Liberty, Fair Trials International, the Medical Foundation for the Care of Victims of Torture, the Parker Institute, the medical refugee centre and Prisoners Abroad. I have been provided with statements from a number of victims of torture, who can speak of the ongoing effects on their lives.

We have had suggestions for improving the Bill, some from colleagues in your Lordships' House, and I am grateful. Those who know me will know that I make no claim to infallibility and I am happy to discuss ways of making the Bill more effective. Some suggestions are already incorporated in the text.

I have read many horrifying stories and they have reminded me that torture is not just a concept in a statute or a chapter in a textbook. It is something that actually happens to people and it cripples their bodies, leads to post-traumatic stress disorder and ruins their careers and sometimes their lives. That is the subject matter of the Bill, and what matters is for us to help the victims recover from the past and try to protect potential victims in the future. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Archer of Sandwell.)

Photo of Baroness D'Souza Baroness D'Souza Convenor of the Crossbench Peers 10:19 am, 16th May 2008

My Lords, almost everyone abhors torture. In fact, so abhorrent is it that perhaps too few actually think about its impact on an individual and his or her family and community. I am afraid that I must draw your Lordships' attention to these unpleasant effects and, in so doing, declare an interest as a former director of REDRESS, the lead sponsor organisation for the Bill, having worked on it for several years.

Torture of whatever kind aims to dehumanise its victims, to humiliate and to break down personality and dignity. In this, and regardless of the physical pain involved, it is successful. To be kept in a dark but exposed cell without privacy or certainty, to be kept in a state of almost constant fear of what the day or night will hold, to feel wholly out of control of one's immediate environment and even of oneself is a traumatic experience. Many of us may still be haunted by small humiliations that we suffered as children, at school or in our first jobs. We may remember the fear that unpredictability engenders, whether due to an adult's behaviour or to daily events. We develop coping mechanisms to suppress the effects of these humiliations and fears, but it often takes a long time and often may be unsuccessful.

The testimonies of victims from all over the world who have survived torture repeatedly cite feelings of worthlessness and nothingness that overcame them while being detained. One says:

"I still hear them yelling 'You're nothing, you're nothing'. I don't sleep because I hear the guard opening the door".

Another says:

"Nobody knows where you are; you feel that the world has given up on you".

Another talks of,

"unspeakable, degrading acts that you will never be able to forget and yet are ashamed to speak about".

Now consider this: the survivors—that is, the lucky ones who do not die under torture—return to their families and to their communities. But how can they share their experiences? How can they subject those closest to them, including children, to the pain of knowing what they have undergone? How can they admit to the truly awful humiliation to which they have been subjected? How can they re-enter family and community life with any kind of confidence, especially if they have given way under torture—that is, signed a false confession, betrayed a friend or denied fundamental beliefs? Depending on the conditions of the detention and torture, there may be severe personality disorders and, inevitably, there is depression, anxiety and sleeplessness with flashbacks and nightmares. Most persistent are the feelings of shame, guilt and loss of self-esteem. One survivor says:

"Ten years later, when I see a policeman I still shake".

Another says:

"I don't have the ... ability to learn new skills due to lack of concentration".

Or:

"I want to try and get that terrible time out of my mind but I can't ... I wake up screaming".

The longer-term effect of torture is mental, psychological and emotional, areas that may not heal as the physical body does, if at all. We must ask ourselves what the extensive research reveals about what helps a torture survivor to deal effectively with this kind of trauma. First and foremost, the survivor needs to have his or her experience acknowledged. He—I use that pronoun for the sake of ease—needs the world to recognise that he has been through a terrible, singular episode and that the utter brutality and unfairness of his torture and detention have to be explicitly accepted. He or she needs to prove that the torturers failed to destroy them as human beings.

The second step is for some public acknowledgement in the form of redress. This is not necessarily about money; it is about the admission by the authorities that another Government have committed a crime against humanity. The judgment from a court that admits to this crime, which castigates in the strongest terms those Governments that allow torture, is in itself healing. It demonstrates to the survivor that his experience was not normal or acceptable, but heinous in the face of the world. Compensation in the form of a monetary award serves to underline to the survivor and to the wider community that justice has been done, that a chapter is on some level closed and that the survivor can now focus on his own recovery. We should not underestimate the force of justice in helping recovery.

That, of course, brings us to the far wider legal implications of the Bill. If torture is to be taken seriously and treated as the crime that it is, Governments must be prepared to prosecute torturers, whether these be agents of the state or the state police. To do otherwise is to condone torture, however tacitly. In a case not so long ago, which REDRESS pursued to the end, the UK Government used every possible evasion tactic to prevent a case against the police in Harare in Zimbabwe for the torture of a British national. REDRESS was told that there was some doubt about the nationality of the victim, despite sworn affidavits and passport details. Letters were misdirected and/or left unanswered. The Attorney-General at the time refused to answer personally addressed letters.

The Bill opens the way for the UK Government to abide by its commitments as a signatory to the UN Convention Against Torture by enabling individuals to seek and gain a civil remedy and justice under the law. Every individual has a right to be free of torture but, until now, there has been no remedy if the responsible Government refuse to take action and claim immunity. If there is no remedy, there is no right. In this sense, to deny the Bill is to infringe the Convention Against Torture.

The Bill challenges state immunity in dealing with crimes such as torture and effectively urges that torture should become a listed exception to the State Immunity Act 1978. If passed, it will give Governments and torturers pause for thought. A crime acknowledged by a court of law, with the details widely accessible to the public, must in the end act as a deterrent. The Bill therefore also contributes to the prevention of torture because, if enacted, it will advertise to the international community that torture will not be tolerated.

Let me conclude with a few sentences from survivors, one a Sudanese lawyer and member of the Sudan Bar Association, whose torture resulted in the amputation of his leg:

"If I managed to bring those responsible to justice, I would feel content and my confidence in the justice system would be restored".

A British project manager in Saudi Arabia said that,

"a law in this country that outlaws torture in another country ... can only be good for mankind".

A Zimbabwean opposition politician said:

"The law needs to change to bring it into shape for the reality facing torture victims ... if the Bill becomes law it will be one of the best developments because it will make people accountable".

Lastly, I quote a Bahraini businessman, who said that,

"we must give light to people who live in the dark".

Photo of Lord Sheikh Lord Sheikh Conservative 10:26 am, 16th May 2008

My Lords, we are today being invited to confront a rather peculiar situation. The international community agrees that torture is unacceptable and should be eradicated, yet we all know that torture continues to be practised in many parts of the world, despite the established consensus. Although I am not a lawyer, I have always taken a keen interest in this issue on humanitarian grounds and completely abhor the distress caused to those who have been victims of this degrading abuse.

It is not good enough for us to agree that something should be done. We must be more proactive in challenging this vile activity. I congratulate the noble and learned Lord, Lord Archer of Sandwell, on the way in which he has presented the Bill to the House this morning. Experience demonstrates that, even if the moral imperative to outlaw this evil practice is put to one side, the activity does not work. Those who argue that vital information can be obtained or public protection secured through the use of torture are utterly wrong. I appreciate the need to obtain intelligence for national security, but that can be done by subtle means and suitable interrogation without the use of torture.

International law requires that states should provide access to justice for victims of torture, including reparation and rehabilitation. Experience demonstrates that this is often complex, problematic or even non-existent. Academic studies consistently prove that access to justice is a key component in rehabilitation for those subjected to such horrific abuse. We have a real duty to act.

Nor can we afford to ignore the social effect of torture. Apart from the degrading impact on general society, torture harms those in the victim's social circle: their family and friends. Inevitably, it affects relationships and causes enormous distress to those who happen to know individuals who have been subjected to acts of torture. The effect of torture is long term for the individual and for the people around them. Given the monumental distress caused as a result of this practice, I am happy to inform the House that I support in principle what the noble and learned Lord seeks to achieve through the introduction of the Bill, although I reserve the right to seek clarification on certain provisions as the Bill progresses through the House.

Victims of gross human rights violations such as torture should be able to achieve access to justice, reparation for the harm suffered and rehabilitation. In seeking to ensure that all victims of torture are able to access justice by having their case presented in court and a judgment considered, the Bill makes an important contribution towards recovery and healing for those affected.

The broad thrust contained in the proposals whereby a person responsible for the commission of torture is liable to damages in civil proceedings is fair. I am pleased that the definition in Clause 5 includes a state as well as a person liable for proceedings. It is an established fact that torture is in many cases sanctioned or tolerated by high officials of a state.

One of the most important issues for any Bill of this nature is the definition of what constitutes torture. The decision to apply the definition used in the Criminal Justice Act 1988 is sensible, but the House needs to be reassured that Clause 5(5) clarifies sufficiently the definition of torture in subsections (1) and (2) of that clause. There is an obvious advantage in ensuring that the definition used for torture is consistent with that which is internationally recognised and applied universally.

Some victims of torture will seek little more than to have their day in court and to present their case. Sadly, in some countries around the globe it is not possible for victims of torture to achieve that. Indeed, where a mechanism for adequate and effective remedy already exists in foreign countries where torture has been committed, victims are able to progress their cases without the need for this Bill. The Bill provides a level playing field for those who are denied the chance to seek that redress because of the lack of adequate and effective remedy mechanisms in those countries. Torture sufferers have a right to legal remedy and reparation under international law and this access, where otherwise denied, can only be a good thing.

I am pleased that, should this Bill reach the statute book, the laws of England and Wales will apply. We should all be proud to exhibit the strength of our legal system in challenging and seeking to tackle this obnoxious behaviour committed in other places that do not afford that mechanism. By amending the State Immunity Act 1978, the Bill would provide an exception to disallow a state from claiming immunity from the proposal. The State Immunity Act already contains a number of exceptions, including for breaches of commercial contracts and for torts committed in this country. I do not have a problem with the proposal in the Bill to include a further exception.

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 towards the use of torture. Achieving adequate redress will require rather more than a well intentioned piece of legislation in this House. That, however, is no reason why the Bill should not receive a fair wind in this House and is certainly no basis on which to reject the proposal on Second Reading.

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.

H

It depends what is meant by 'torture' and who defines it!
If it is the overt and bodily torture such as beating up etc, then one can look beyond the UK!

Submitted by Harrow Crime Prevention Panel

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 10:36 am, 16th May 2008

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.

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 could be maintained by various methods, such as harsh interrogation, which was almost a term of art, and which permits the interrogator to shout and scream abuse and insults in the face of the person who has been captured.

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.

Photo of Lord Judd Lord Judd Labour 10:46 am, 16th May 2008

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 Arabia, responsible for the running and maintenance of a large housing and hotel complex ... On returning to the UK Les found his life completely turned around. As the result of being tortured, his blood pressure became very unstable resulting in numerous periods of hospitalisation. He suffered broken teeth and serious problems with his feet as the result of beatings ... His experiences have left him unable to function as before—he says he tends to panic in situations where he is surrounded by people. He has flashbacks and nightmares of his ordeal. He spends a lot of time on his own and is unable to concentrate for more than short periods ... Les is unable to work and consequently is dependant on State benefits for his daily needs. He lives in a small 1 bedroom council flat and says he does not have the mental ability to learn new skills due to his lack of concentration ... Les has not received any apology or compensation for what happened to him. If Les were to succeed in bringing a claim against his torturers, he says, this would allow him a greater chance to live the life he hoped to have previously".

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 reassurance are tacit acceptance of the existence of torture and do little to isolate and condemn those who practise it.

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.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 10:58 am, 16th May 2008

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 in relation to torture. I declare an interest as a commissioner of the Independent Asylum Commission which, for the past almost two years, has been establishing evidence on the way that asylum seekers are treated in this country and has recently published its findings, from which I intend to quote. The report is called Fit for Purpose Yet? The question mark remains very strong.

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".

It goes on to say that,

"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", and,

"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.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 11:06 am, 16th May 2008

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.

I mention those facts in order to point out the crushing irony that all that seemed to be reversed completely in the 20th century with the fascist regimes of Germany and Italy and with Stalin's USSR. Indeed, even in the 21st century, from Rwanda to Bosnia and from Beijing to Guantanamo Bay, we have torture again as a feature of policy and an instrument of terror.

I appreciate the arguments that have been put forward by everyone who has spoken in the debate, which I regard as being irrefutable in support of the Bill. In the period immediately after the Second World War, international law made a great leap forward. Previously, it had been concerned with states and parties, with one exception, which was the law of piracy, when it had looked to the individual. Not only did international law then condemn torture but it looked at the situations of the torturer and the victim. That led to the torture convention of 1984 and, as we know, its incorporation into our law in the Criminal Justice Act 1988.

In those circumstances, I think that the ordinary, intelligent, fair-minded citizen in this land would be pardoned if he were to say that, as there is universality of approach in relation to the criminal situation, there must be a parallel approach equally universal and equally comprehensive in relation to the civil rights of a person who has suffered torture. That is a massive lacuna in the law and the House is deeply indebted to the noble and learned Lord, Lord Archer, to REDRESS and to similar bodies for their attempts to close that lacuna.

Section 1 of the State Immunity Act 1978 gives blanket immunity to all states. Sections 2 to 11 deal with specific exemptions, of which torture is not one. Although only 10 years separate the State Immunity Act 1978 and the Criminal Justice Act 1988, I believe that they represent two different watersheds. One could say the same of the 1978 Act and the torture convention of 1984.

In that context, we have to appreciate the importance of this Bill. I appreciate that the Government may not welcome it with incandescent enthusiasm and I appreciate that that may not be the personal view of the Minister who is to reply to this debate. However, I urge on him the following considerations. I believe that most countries have interpreted Article 14 of the convention as being of universal application and not just a precept with which a particular state should be concerned, although that has been the interpretation relied on by the United States of America. One can argue that there was essentially an international approach to the universal principle of the right of the tortured to be compensated or the right of his estate to be compensated. I have no doubt that the fact that some 130 countries have already ratified the 1984 convention has essentially, although not technically, established a basis for an international-law approach to this matter, so it would not be proper to argue that one is taking a step that goes beyond international thinking in this matter.

On the irony of this situation in relation to the position of the United Kingdom, it has been possible, since the Crown Proceedings Act 1947, to bring an action against the state. Previous to that, it could be done only with the consent of the state. We all remember Terence Rattigan's play "The Winslow Boy", from the Archer-Shee case of 1902 or thereabouts, when of course a government department could be sued only if it consented to be sued. The year 1947 changed all that. If it is right that a Government and their agencies should have to stand in a court of law and be responsible for acts of negligence and remission, how much more necessary is it that they should be there if there has been a deliberate cold-blooded act of torture?

There can be no justification for rejecting the principle as a principle. I do not believe that it is open to massive abuse at all. However, the other side of the coin is that torture is obscene and reprehensible; it is the worst invasion possible of the human body and human dignity. In those circumstances, all manner of resolutions condemning torture become irrelevant unless the victim is in a situation to claim proper compensation. I believe that the failure to change that situation will make a mockery of all that has been achieved in relation to the universal criminalisation of torture.

I respectfully suggest to the Minister that it would be eternally to the credit of Britain, which has shown so much initiative in the field of justice and human liberty over the centuries, to say now that, whatever the minor difficulties might be, the principle is of such massive sovereignty that it has to be accepted. We should give every support to this legislation.

Photo of Lord Borrie Lord Borrie Labour 11:15 am, 16th May 2008

My Lords, it is probable that most people in this country and elsewhere regard torture as a criminal offence and that they follow my noble and learned friend Lord Archer of Sandwell in thinking it a most loathsome offence, condemned by the whole world. Of course, a conviction of a state or an individual for torture does not do the victim any good. Article 14 of the UN convention of 1988 valuably made the point that every signatory state should provide reparation and redress to a victim. That is what my noble and learned friend's concise and modest Bill seeks to effect.

One hundred and fifty-one countries signed the convention. The sheer number suggests that there is some point in the well known human rights lawyer, Clive Stafford Smith, describing the Governments of many of those 151 countries as ranging from sanctimonious to hypocritical. Many of them have records that demonstrate the truth of those rather rude comments. Mr Stafford Smith thought that countries signed because public officials felt that there was a need to condemn torture on the world stage. Did they really mean it?

I am happy to say that, as has been mentioned, the United Kingdom Government made torture a criminal offence in Section 134 of the Criminal Justice Act 1988. However, as others have pointed out, including the noble Lord, Lord Elystan-Morgan, the State Immunity Act 1978 and this House, in the decision to which my noble and learned friend referred that it made in its judicial capacity, make the point that sovereign states have immunity from actions in respect of torture. This Bill will remove that exemption from liability.

Noble Lords will have noticed—I recall the remarks made by my noble friend Lord Judd—that, especially since the threat of terrorism has emerged on the international scene in the past few years, the incidence of torture carried out by servants of a state, including by the armed forces of more than one individual country, has escalated. There is a tendency to get a blanket wall of denial and obfuscation from Governments, some of whom may no doubt be shamed and some of whom may not be.

I say to the noble Lord, Lord Ramsbotham, that the memoirs of distinguished generals do not tend to admit to any bad treatment by their troops towards prisoners of war or captured civilians. Ministers' memoirs are no better at being forthcoming on such matters. I think that soldiers on the ground, particularly those who have seen or endured savage physical and mental cruelty, would probably be saints if they did not sometimes engage in cruelty or act as willing instruments of their superiors who expect cruelty to be a more successful method of interrogation. However, I assure noble Lords that understanding the feelings of those who may engage in retributive cruelty on those who have cruelly used them or their comrades is not to excuse or justify.

Clause 4 gives the definition of torture, which is taken, quite appropriately, from the UN convention and the Criminal Justice Act 1988. I shall not read it again. It deals with perpetrators and instigators. The individuals who perpetrate the harsh treatment, cruelty or torture and superior officers or superior people, including sovereign states, are all covered. The noble Lord, Lord Thomas of Gresford, used the neat word "complicit". I hope that I am right in thinking, as I think he does, that a solider who uses unlawful physical or psychological restraints and techniques to interrogate prisoners entrusted to his care is guilty of torture, as are colleagues who stand by or watch what is going on, because they have surely consented or acquiesced, to use the words of the Bill, in the infliction of serious pain and suffering.

I have two questions for the Minister. First, and I do not think that this phrase has been used today, what is the position on superior orders? We all remember the attempt to use the defence of superior orders at Nuremberg. We know that, generally speaking, superior orders are not a good defence. It is many years since I did my national service. Half a century ago, my copy of the Manual of Military Lawwas well thumbed, although I have hardly opened it since. However, I opened it recently and saw that it takes the strong line that the belief—albeit reasonable—that orders are lawful is no defence. That view has not gone unchallenged, because a soldier is trained to obey orders not just casually but instantly. It may not be realistic to expect a soldier to consider whether the order given is lawful, even if it is not manifestly unlawful. To have him contemplate that in the urgency of the occasion is difficult. Secondly, Clause 3 states that, if a state is sued for compensation for torture, it is not immune from proceedings. Are the Government willing to go along with that, irrespective of what other Governments do? I wish the Bill good fortune.

Photo of Lord Woolf Lord Woolf Crossbench 11:24 am, 16th May 2008

My Lords, I am in the advantageous position of having heard the speeches that preceded mine. Much that I might have said has already been said, and I closely endorse what my noble colleagues have said. In particular, I express my appreciation for the contribution of the noble and learned Lord, Lord Archer of Sandwell, which has enabled us to debate his excellent initiative in the Bill.

When one looks at its purpose as a lawyer, one can say that its task is a narrow one: to change one provision of legislation passed in 1978. However, I submit as forcefully as I can that the outcome of the Bill will send a signal to other parts of the world about how this country views the offence of torture. It is perhaps unfortunate that the State Immunity Act was passed in 1978 but that the convention on torture, to which reference has been made, dates from 1984. I wonder whether, if the order had been reversed and the number of states that would ratify the convention on torture had been known, the absence of torture as an exception to the State Immunity Act would have been rectified.

In the world today, there is much greater appreciation that we live within a world society where people are travelling from one country to other, where mishaps can occur to them in one state and where they will find themselves ending up in another state. Victims of torture in this country suffered their torture elsewhere. Can it be right in this day and age that our domestic legislation, which is this country's personal responsibility, does not cater for a situation where people find themselves in this country, perhaps contrary to their private desires, because of what has happened to them in another country, and are deprived of any redress from our courts, notwithstanding the fact that they cannot get redress elsewhere?

In the case of Jones, which is the case that gives rise to the Bill, their Lordships were faced with a conflict between two principles of international law—state immunity and abhorrence of torture—but with domestic legislation before them that did not, when it could have, make an exception for torture. The Bill would ensure that if a case such as Jones came before our courts in future there would not be, as there appears to be now, an immovable block to the progress of the law of this country. The courts would no longer be faced with a domestic law that creates state immunity. Instead, if a state wished to rely on state immunity, it would have to rely on the state immunity principles of international law at the time that the point arises. In that situation, I suggest and hope that there would be developments in international law that would make it clear that state immunity should no longer be a bar to proceedings in a country where it is appropriate for those proceedings to be brought.

If the Bill proceeds, as I earnestly hope it will, this House will send a signal to other jurisdictions where the views of this country on matters such as those to which I have referred still carry great weight. The right answer is that if a person has been tortured and has no other remedy and that person resides in a civilised country—which will therefore be the convenient jurisdiction—should be able to get civil redress, particularly where redress is available with regard to the criminal law.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs 11:30 am, 16th May 2008

My Lords, I, too, start by thanking the noble and learned Lord, Lord Archer of Sandwell, for his initiative in bringing forward the Bill. I have listened with admiration to the many noble and, not least, noble and learned, Lords who have spoken in its support. The noble and learned Lord, Lord Woolf, has just reminded us that the preservation of the doctrine of state immunity is the main argument to be used against the Bill, but we ought to recall that, in the final assessment, international law is based on consensus about the degree of interference there can be by the international community, or other state parties and actors, with the sovereignty of states. This has been accepted since the formation of the Westphalian system, but we also know that international law has grown and adapted through the centuries to reflect the changing nature of the international system.

The Vienna and Geneva conventions of the 19th century and the establishment of the United Nations and Bretton Woods institutions in the 20th century are examples of where countries have seen the benefits of giving up state sovereignty and their exceptions from state immunity in order to gain through international co-operation. Recently, we have seen the establishment of the International Criminal Court as another welcome manifestation of the expansion of international law. Even more recently, we have seen agreement on the United Nations duty to protect. Indeed, that is being currently debated, albeit in a contested manner, in relation to Burma.

My argument is that it is both in our pragmatic self-interest as a country and morally right for us to adopt the Bill. There are times when states need to open their protective mantle to reflect what is right, and the Bill has come at the right time for us to do so. In the United Kingdom, we carry a broader responsibility: that of our historical past, which has led to the adoption of our common law and judicial systems in so many parts of the world; in our leadership of the United Nations Security Council, where we currently preside—another reason why the Bill is so apposite; and in our membership of the European Union, the Commonwealth and other significant multilateral organisations. Despite recent history post-9/11, about which the noble Lords, Lord Borrie and Lord Judd, spoke, it is important for us now to be prepared to stand up for principles and to lead in this regard.

Let me start with pragmatic self-interest. We know that torture does not work. We know that it often involves extreme physical and psychological harm. Let me develop this argument to say that it carries the threat of coercion even when the torture itself does not involve inflicting physical pain. It is about total subordination and total control. The interrogator hopes through the use of torture that the victim, the enemy—the recipient has to be seen as the "other" and constitute the enemy in the mind of the interrogator so that they can be denied the status of a rights-bearing individual—believes that they are powerless to protect themselves from harm. They are often also led to believe that they are powerless to protect their loved ones from a similar threat. The threat of the infliction of physical pain and complete subordination is what results in the person subjected to torture providing information. We know from our intelligence community as well as from many other states that have similar norms and standards to us that information obtained under torture is considered among the most unreliable. The very reason why most states do not use torture as an instrument of intelligence-gathering is precisely because they know that it will not work.

That is one of the many arguments against the contortions that have sought to justify Guantanamo and the many legal inventions that we have seen in the annals of the Pentagon and the Ministry of Justice in the United States. People know that those legal contortions have not been built on anything that we would consider by any means credible. That is why it is in our self-interest to speak out against torture in word and deed. My noble friend Lord Thomas of Gresford has spoken about the United States so I shall turn to other countries where the most recent allegations of torture by UK citizens and UK residents rest.

All three of the countries that I want to talk about—Saudi Arabia, Pakistan and Egypt—have a strong security apparatus and weak judicial checks and balances, even where there is an independent judiciary. In most other countries that face allegations of torture, there are authoritarian regimes, there is no political space to express dissent and human rights norms are non-existent. When people break the extensive prohibitions on freedom of expression, freedom of association or the most basic political activity, physical punishment is very much part of the methodology or toolkit of the so-called maintenance of law and order. In those societies, when you are a dissenter, it is extremely likely that you will face torture, especially in this post-9/11 world, where those states are facing internal dissenters, as is Saudi Arabia.

Public opinion within those countries is aware of all that. People are also aware of our legal instruments and norms. They know that here in the United Kingdom, the rule of law prevails and that we do not condone those sorts of practices for ourselves, although I take the warning in that regard of the noble Lord, Lord Judd, very much to heart. What is less clear to the man on Arab street is why we support their Governments in those practices. I am not talking here about our complicity in those practices abroad where our security services are alleged to have been complicit, whether in Iraq, Afghanistan or Pakistan. I am talking about the signal that we send when we do not act to provide redress for victims, even if it embarrasses our friends or allies.

My argument is that we will support the aspirations of many if we pass legislation such as this, which sends a powerful message that we not only oppose torture for our citizens but, in the space that is the United Kingdom, we will allow for redress and recompense for victims of torture, irrespective of where it happened. That is the moral backbone of the Bill and that is why we must support it. Some will say that it will provide only cold comfort, that suing Saudi Arabia, Egypt or Syria in our courts will not make them hand over damages. It is true that they may well not, but the victim will know that if the ruling goes in his favour, that is right there for all to see. The regime will have had an open judicial system transparently rule against it. It will be a moral victory that will encourage even those who cannot benefit from the protection of our law. In time, the countries that look to and use our judicial decisions as guidance could, and I am sure will, follow our example.

Let me turn briefly to the fears about how this might result in large numbers of prosecutions here in the United Kingdom. Again, several noble and noble and learned Lords have pointed out that the Bill is limited in that victims of torture will be able to use this legislation only where, as Clause 1(2) says,

"no adequate and effective remedy for damages", exists.

This country has a proud tradition of giving political asylum; the noble Lord, Lord Ramsbotham, drew our attention to this. It is right that it should have done so in the past and it is right that it continues to do so today. It would be the logical extension of this most humane tradition for us to join some 25 other countries in providing redress in this cause. Fourteen of those 25 countries are European Union states, and it is only fitting for the United Kingdom to join their company.

The noble and learned Lord Archer of Sandwell, with his characteristic humility, spoke about his openness to amendments to improve the Bill. To an untrained eye such as mine, it seems to be eminently suited to its job, but we on these Benches will keep an open mind to the amendments that might improve it.

In conclusion, I turn to Philippe Sands QC, a redoubtable campaigner for international law, whose current book, Torture Team, is making the headlines at the moment. In his earlier book, Lawless World, he wrote of the impact across the world of the 1988 Pinochet extradition case. It undoubtedly had a great impact because it was the highest court in the United Kingdom, the Judicial Committee of the House of Lords, that led to the extradition of General Pinochet. It was a proud day for the United Kingdom.

It is fitting that the Bill, with its strong moral message, should start its passage in your Lordships' House. We on these Benches will support it wholeheartedly.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 11:42 am, 16th May 2008

My Lords, like so many other noble Lords who have taken part in this debate, I, too, pay tribute to the noble and learned Lord, Lord Archer of Sandwell. Many people, both in and out of public life, consistently and rightly express their repugnance at torture and all acts associated with it. However, what distinguishes the noble and learned Lord, as the noble Lord, Lord Judd, said so graphically in the opening phase of his speech, is that whether in government, in opposition or from the Back Benches of his party, the noble and learned Lord has consistently striven to do something practical about it. The Bill is only the latest example of what the noble and learned Lord has done, and the country owes him a great debt for having been so persistent for I hesitate to mention how many years; I know that it is several decades since he held the great office of Solicitor-General. At any rate, I hope he will not mind my saying that it has been a very long innings and that he deserves all our congratulations.

As the noble and learned Lords, Lord Archer and Lord Woolf, among others in your Lordships' House, have said, the origin of the Bill lies in the case of Jones v The Ministry of the Interior of Saudi Arabia, which was heard as recently as 2006. This case, as the noble and learned Lord, Lord Archer, has explained, concluded that the United Kingdom courts had no jurisdiction to hear a civil claim against a foreign Government with regard to acts of torture inflicted outside the United Kingdom jurisdiction. The core of the judgment was an analysis of the State Immunity Act 1978 and the exceptions to it, set out in Sections 3(1)(a), 4 and 6. The conclusion reached was that as torture was not one of the exceptions to that Act, there was no jurisdiction to hear such civil claims. The greatest merit of the Bill is that it reverses that decision in domestic law. That is wholly admirable.

The noble and learned Lord, Lord Archer, emphasised that his approach to the Bill, although influenced by the convention on torture, was not reliant on it. In fact, there are other important precedents around the world to support its clauses. It is particularly illustrative of the way in which the noble and learned Lord has approached the Bill that in the United States in 1992, the Torture Victim Protection Act was adopted, which permits individuals located in the United States to sue foreign Governments responsible for torture; so there is an important precedent for us across the Atlantic. France, Germany and Spain all have civil remedies that are attached to criminal provisions. We, too, as the noble and learned Lord has indicated, have, in Section 134 of the Criminal Justice Act 1988, adopted universal jurisdiction in criminal law in relation to torture, to which the prosecution of Faryadi Zardad in 2005 attests.

The interpretation of Article 14 of the convention, as I think the noble and learned Lord, Lord Woolf, suggested, is another matter. Once the state immunity inhibition is removed—if the Bill is passed—it is not, as the noble and learned Lord indicated, the end of the story, because there is still the international law on state immunity, which might continue to inhibit a private action in our own courts from succeeding. It would be wrong of your Lordships to think—I am sure that none of you does—that the mere passage of the Bill will necessarily achieve the objectives so eloquently expressed by, among others, the noble Baroness, Lady D'Souza. If the Bill is passed by Parliament, it will be the beginning of the journey, not the termination of it.

The noble and learned Lord, Lord Archer, at the outset, explained why he thought that the Bill was desirable. The three issues that he highlighted are fundamental to the Bill's merits. First, at the individual level, the physical and psychological injury done to the victims of torture, as so many of your Lordships have indicated, is likely to be irreparable. Compensation will help them to face up to lives that have been horrifically damaged. It can do no more than that. Nevertheless, it is right that that compensation is received. Secondly, it is morally wrong that individual states should be allowed to hide behind the State Immunity Act 1978 in relation to torture. Thirdly, we all hope that it would act as a deterrent to states practising torture. All three of those arguments are irrefutable.

A number of your Lordships have talked about the details of the Bill. I was delighted to hear my noble friend Lord Sheikh draw your Lordships' attention to the provision which draws in complicity, a point that the noble Lord, Lord Thomas of Gresford, also emphasised. It is right in a Bill of this sort that that should be one of the bases on which a civil action could be brought.

The 1992 United States Bill has a similar provision on the effectiveness of seeking some form of compensation in the alleged torturer's state. I know that the noble Lord, Lord Thomas of Gresford, has hesitations about that, as do one or two of the non-governmental organisations which support this legislation. However, it is right that such a matter should be thoroughly investigated by their own domestic courts before allowing an action to go ahead. If there is a proper set of domestic procedures in the state of the alleged torturer, it is to those that our own legal system should yield until the matter has been resolved. It is only if it has not been resolved that the provisions of the Bill introduced by the noble and learned Lord, Lord Archer, will begin to take effect and there subsequently will be a six-year limitation period. In my view, the noble and learned Lord has got the balance exactly right.

In conclusion, there is of course a range of difficulties connected with the appearance of the defendant and how the defendant is represented, and a raft of evidential issues which will have to be confronted and overcome before the Bill can have, if it were to become law, operational effect. But that should be no deterrent and certainly is not a deterrent as a matter of principle.

The noble and learned Lord, Lord Archer—I am repeating myself in saying this, but it cannot be too often repeated—has done Parliament a major service by bringing this Bill to your Lordships' House.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 11:53 am, 16th May 2008

My Lords, perhaps I may join the noble Lord, Lord Kingsland, and associate myself with the remarks particularly of my noble friend Lord Judd, in congratulating the noble and learned Lord, Lord Archer, on securing this Second Reading debate and in paying tribute to him for all that he has done in this very important and difficult area over many years. I know that he presented a similar Bill to Parliament in the previous Session and I am pleased that we now have an opportunity to debate this important issue. I also acknowledge the impressive array of speakers and speeches that have been made.

Clearly, this is a matter of great significance, but it also requires us to consider various principles of international law, as well as the United Kingdom's diplomatic and legal relations with other states. I shall draw attention to certain challenges and difficulties that would need to be faced. The Government, as is normal with Private Members' Bills in your Lordships' House, will not seek to oppose the Bill, and I hope that I shall offer helpful comments on some of the technical details.

The noble Baroness, Lady D'Souza, spoke eloquently and passionately about the awfulness of torture, of the experience of people who have been tortured and of their need for what she described as justice and closure. The noble Lord, Lord Sheikh, talked about the impact for someone who has been tortured on relationships and the effects of torture. We heard from my noble friend Lord Judd a specifically disturbing example.

The Government unreservedly condemn torture in all its forms, wherever it occurs in the world. We work hard with our international partners to eradicate this abhorrent practice, although, as the noble Lord, Lord Elystan-Morgan, suggested, we can never afford to be complacent. International action has been a priority for the Government since the launch of the 1998 UK anti-torture initiative. My colleagues in the Foreign and Commonwealth Office have intensified their efforts to combat torture, wherever it occurs, through diplomatic activity, practical projects and funding for research.

Between 2005 and 2007, we funded Penal Reform International to implement a project to strengthen national mechanisms to prevent torture and ill-treatment in Kazakhstan. It has established a network of public monitoring boards across the country, which were responsible for providing public control of prisons as well as helping victims of torture in pre-trial detention centres and police cells. As a result, in December 2006, three police officers were sentenced for torturing suspects in pre-trial detention centres. There are further examples of the UK's action and international action in supporting such initiatives and actions.

We abide by our commitments under international law and expect all countries to comply with their international legal obligations. We encourage other countries to adopt and to adhere to international standards in this area, particularly the United Nations Convention against Torture and the European Convention for the Prevention of Torture, which has been much spoken about in this debate. We also support the work of the Association for the Prevention of Torture, an NGO working for the ratification and implementation of the UN convention.

We have taken the lead internationally. In 2003, we ratified the optional protocol to the UN convention. We were the third country in the world and the first European Union country to do so. We are now close to completing the establishment of the national preventive mechanism that it requires, which will possess powers to visit unannounced any place of detention in the United Kingdom. At this stage, perhaps I should pause before I talk about the specific matters raised by my noble and learned friend's Bill.

I refer the noble Lord, Lord Borrie, who asked me about superior orders being a defence to torture, to Section 134 of the Criminal Justice Act 1988 where the only defence to a prosecution for torture is that the pain or suffering was inflicted with lawful authority, which gives effect to Article 1 of the UN torture convention. I also refer him to Article 2.3 of the convention, which clearly states:

"An order from a superior officer or a public authority may not be invoked as a justification of torture".

I of course listened with a great deal of care to the speech of the noble Lord, Lord Ramsbotham. The report to which he referred will be carefully considered. We take seriously our obligation to give refuge to people fleeing persecution or torture, but it is important to ensure that our asylum system is fair and capable of distinguishing between legitimate and illegitimate claims.

Under the UN Convention Against Torture, states party to it are required to establish jurisdiction in their criminal law over the offence of torture wherever in the world that torture is alleged to have occurred. As my noble and learned friend Lord Archer said, Section 134 of the Criminal Justice Act 1988 fulfils this obligation in respect of the United Kingdom. It means that if a person who is alleged to have committed torture is present in our territory, they should either be extradited to face trial overseas or tried in our domestic courts. A number of noble Lords recalled the successful prosecution in 2005 of Faryadi Zardad for torture offences committed in Afghanistan. He is now serving 20 years' imprisonment. Noble Lords have also pointed out that while universal criminal jurisdiction over torture is mandated by our international obligations, universal civil jurisdiction is not so required.

The noble Lord, Lord Kingsland, the noble Baroness, Lady Falkner, and others referred to the case of Jones against Saudi Arabia. The issues in the case were, first, whether state immunity applies where civil compensation is being sought for torture and, secondly, whether officials should be able to rely on the immunity of the state. The Government of Saudi Arabia argued that they were entitled to immunity under the State Immunity Act 1978 and well established rules of international law. The two leading judgments were given by the noble and learned Lords, Lord Bingham and Lord Hoffmann, with the rest of their Lordships concurring, and they found that an English court does not have jurisdiction to entertain proceedings brought here by claimants against a foreign state and its officials in relation to alleged torture carried out in the territory of the foreign state.

The general principle of international law remains that one state is not subject to the jurisdiction of another except in certain recognised circumstances. I understand the argument that the exceptional nature of torture is one where such a recognised circumstance would come to the fore. However, the exercise of extraterritorial jurisdiction, even where states and state officials are not involved, remains at the least a difficult area. States have to respect the limits imposed by international law on the authority of an individual state to apply its laws beyond its territory.

On the question of civil jurisdiction, there is as yet no evidence that states have generally recognised or given effect to any obligation to exercise universal civil jurisdiction over claims arising from alleged torture. When the United Nations Convention Against Torture was negotiated, the option of creating an international civil course of action was accordingly not pursued. Furthermore, the United Nations adopted in 2004 the Convention on Jurisdictional Immunities of State and Their Property after a period of prolonged negotiation, which, as I have said, the United Kingdom signed in 2005. That convention also makes no exception in respect of civil actions for personal injury or death alleged to have occurred outside the territory of a state. Although the convention is not yet in force, I recall that the noble and learned Lord, Lord Bingham, described it as,

"the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases".

I turn now to the impact of my noble and learned friend's Bill. The noble and learned Lord, Lord Woolf, and the noble Lord, Lord Kingsland, suggested that its passage would mark the beginning of a journey rather than the end. While the Bill could make it possible for those who claim to have suffered torture to seek an award of damages, it would remain essentially impossible to enforce a judgment against a foreign state. I should also point out that any attempt to seize the property or assets of a state would be particularly controversial and liable to lead to potential retaliatory action against United Kingdom interests.

Perhaps I may paraphrase the concluding remarks of the noble Lord, Lord Thomas of Gresford, who, when he referred to potential issues regarding international relations, said that he would put human rights considerations at a higher level. I understand his point; indeed, the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Woolf, suggested that the importance of this Bill is that it sends a signal to the international community. I well understand that, but unilateral action in the manner proposed in the Bill might also be significantly damaging to the international relations of the United Kingdom. However, the Government are alert to the possibility that in the future a new international consensus may develop and prompt changes to the law in appropriate places. That is what happened in relation to universal criminal jurisdiction as reflected in the UN Convention Against Torture. Moreover, we will of course listen carefully to the debates on this Bill as it goes through your Lordships' House.

Obviously there are technical matters in the Bill to be considered. I shall be happy to write to my noble and learned friend with the Government's analysis of them and place a copy in the Library. No doubt at subsequent stages of our consideration we will discuss some of those technical issues. In the mean time, once again I congratulate my noble friend on bringing this important matter to your Lordships' House.

m

Lord Hunt, the implication of your comments is distasteful.

Either you agree that the prevention and torture exists on a higher plane than mere aspects of national interest (for example monetary interests and defence contracts) or you believe it does not.

If - as I've read between the lines in your speech - you believe that preventing, banning and signalling the UK's abhorrence of torture is not on the same level as material interests then you should be more open and honest about it. Please do not use a figleaf of "national interests" or "technicalities".

Can I remind you that slavery was banned even though it was against monetary national interests and even though the UK implemented the slavery reforms unilaterally at first.

Banning and preventing torture is simply the right thing to do. Do not insult our intelligence by watering down the proposals and then pretending you only watered them down for other practical reasons.

I cannot believe how low Labour have fallen from their ideals and I say that without exaggeration. It truly is astonishing.

Submitted by mick angel

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour 12:07 pm, 16th May 2008

My Lords, at the end of a debate like this it is conventional to begin by thanking all noble Lords who have participated. I do so today, although not conventionally but from the bottom of my heart. I thank so many noble Lords for the support they have offered. I am bound to say that I agree with my noble friend Lord Hunt that this may go down in history as one of the debates most worthy of the traditions of this House. I am also very grateful to all those who have made kind remarks about me personally. The fact that most of them are undeserved does not entail that they are unappreciated.

I should explain that I have three pages of notes from the debate. If I do not elaborate on all of them, I hope that noble Lords will find it in their heart to forgive me. Perhaps I may pick up one or two comments briefly. The first is from the noble Lord, Lord Elystan-Morgan, who told us that at the beginning of the 20th century, it was thought that there was no longer a problem of torture. It had gone, and Victor Hugo elaborated on it in his usual style. We thought some time ago that we had got rid of tuberculosis, but the fact is that we cannot just sit back and forget about these matters because there is something about eternal vigilance.

The reasons that torture has become a problem again have been elaborated on by a number of noble Lords. The noble Lord, Lord Ramsbotham, pointed out that this country affords sanctuary to refugees, which in itself imposes on us an obligation to ensure that when they are here, we recognise their needs. The noble and learned Lord, Lord Woolf, said that now far more international travel is undertaken by a far larger number of people, while the noble Lord, Lord Sheikh, pointed out that this is a corollary to a number of our other policies, such as that which attempts to discourage extraordinary rendition.

As the noble Lords, Lord Thomas of Gresford and Lord Kingsland, pointed out, it is curious that there should be a need for this debate. There are jurisdictions where a right to reparation follows a criminal conviction and there is an almost artificial distinction in discussing whether we are talking about criminal or civil proceedings.

My noble friend Lord Judd, with his normal sensitivity, warned us against what he called turning human suffering into an arid academic disputation. I am sure that my noble friend will be the first to say that the word "academic" is not necessarily a term of abuse. There are matters we should discuss—such as where the burden of proof should be in relation to forum nonconveniens and limitation—and I am tempted to advert to them now, but I shall leave that to a later stage. The noble Baroness, Lady Falkner, properly pointed out that international law is not an inert body but a living organism. It develops, it reacts to new situations and new standards and, like all living organisms, it grows. That is something we have to recognise.

Ultimately, as the noble Baroness, Lady D'Souza, pointed out, the real purpose of this legislation is to assure victims that torture is not normal; as we would proclaim to the world, it is wicked and abominable. If the Bill achieves that, it will have been worthwhile. The noble Lord, Lord Kingsland, and the noble Baroness said that this is the beginning of a journey. It is a narrow Bill but, as the noble and learned Lord, Lord Woolf, indicated, perhaps it can punch above its weight.

On Question, Bill read a second time, and committed to a Committee of the Whole House.