Torture (Damages) Bill [HL]

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.)