Torture (Damages) Bill [HL]

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 seeks to achieve through the introduction of the Bill, although I reserve the right to seek clarification on certain provisions as the Bill progresses through the House. 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) of that clause. 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. I recognise the difficulties and frustrations that affect those who have been victims of torture and I am passionate in my determination to ensure that they have the access to justice that they have a right to expect. It must be of concern, however, that a court judgment passed in this country will not necessarily lead to a resolution for those victims of torture, particularly among rogue states that are likely to be most disposed towards the use of torture. Achieving adequate redress will require rather more than a well intentioned piece of legislation in this House. That, however, is no reason why the Bill should not receive a fair wind in this House and is certainly no basis on which to reject the proposal on Second Reading. Some may argue that affording the courts the opportunity to become involved in passing judgment on the actions of foreign jurisdictions will weaken our strategic relationships with certain foreign Governments. I reject that suggestion. Torture is unacceptable in any country and anything that highlights those who fail to take the necessary action to eradicate it in their respective jurisdictions should be progressed. An example of how this might facilitate that development is clear from the Bill. Foreign states that wish to avoid the humiliating prospect of being sued in our civil courts need only provide their own domestic legal arrangements to afford torture survivors the opportunity to challenge their treatment within those countries’ legal systems. My final point concerns the dreadful issue of complicity that is implied through the action of rendition. We need to be sure that all future concerns about rendition flights are asserted strongly and in the public domain. However, given the stance that we all take on torture, we have to acknowledge that rendition leading to torture is unacceptable. I would like to see a higher threshold for rendition to third countries and, particularly on the part of the United States, for it to reflect more closely international norms, which go beyond a matter of mere belief that the suspect will not be tortured. These differences of practice and definition are at the root of international concern and their satisfactory resolution would mean that, rather than permanent suspicion and occasional revelations, real trust might be restored for the future. I wish the Bill well and look forward to taking an active interest during its passage.