Torture (Damages) Bill [HL]

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.