Torture (Damages) Bill [HL]

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.