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House of Lords
Friday, 16 May 2008.
The House met at ten o'clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.
Torture (Damages) Bill [HL]
Lord Archer of Sandwell: 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.
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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
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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
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Moved, That the Bill be now read a second time.—(Lord Archer of Sandwell.)
10.19 am
Baroness D'Souza: 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”.
- “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:
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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
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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 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,
10.26 am
Lord Sheikh: 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
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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). 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.
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