Torture (Damages) Bill [HL]

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.