Torture (Damages) Bill [HL]

My Lords, it is probable that most people in this country and elsewhere regard torture as a criminal offence and that they follow my noble and learned friend Lord Archer of Sandwell in thinking it a most loathsome offence, condemned by the whole world. Of course, a conviction of a state or an individual for torture does not do the victim any good. Article 14 of the UN convention of 1988 valuably made the point that every signatory state should provide reparation and redress to a victim. That is what my noble and learned friend’s concise and modest Bill seeks to effect. One hundred and fifty-one countries signed the convention. The sheer number suggests that there is some point in the well known human rights lawyer, Clive Stafford Smith, describing the Governments of many of those 151 countries as ranging from sanctimonious to hypocritical. Many of them have records that demonstrate the truth of those rather rude comments. Mr Stafford Smith thought that countries signed because public officials felt that there was a need to condemn torture on the world stage. Did they really mean it? I am happy to say that, as has been mentioned, the United Kingdom Government made torture a criminal offence in Section 134 of the Criminal Justice Act 1988. However, as others have pointed out, including the noble Lord, Lord Elystan-Morgan, the State Immunity Act 1978 and this House, in the decision to which my noble and learned friend referred that it made in its judicial capacity, make the point that sovereign states have immunity from actions in respect of torture. This Bill will remove that exemption from liability. Noble Lords will have noticed—I recall the remarks made by my noble friend Lord Judd—that, especially since the threat of terrorism has emerged on the international scene in the past few years, the incidence of torture carried out by servants of a state, including by the armed forces of more than one individual country, has escalated. There is a tendency to get a blanket wall of denial and obfuscation from Governments, some of whom may no doubt be shamed and some of whom may not be. I say to the noble Lord, Lord Ramsbotham, that the memoirs of distinguished generals do not tend to admit to any bad treatment by their troops towards prisoners of war or captured civilians. Ministers’ memoirs are no better at being forthcoming on such matters. I think that soldiers on the ground, particularly those who have seen or endured savage physical and mental cruelty, would probably be saints if they did not sometimes engage in cruelty or act as willing instruments of their superiors who expect cruelty to be a more successful method of interrogation. However, I assure noble Lords that understanding the feelings of those who may engage in retributive cruelty on those who have cruelly used them or their comrades is not to excuse or justify. Clause 4 gives the definition of torture, which is taken, quite appropriately, from the UN convention and the Criminal Justice Act 1988. I shall not read it again. It deals with perpetrators and instigators. The individuals who perpetrate the harsh treatment, cruelty or torture and superior officers or superior people, including sovereign states, are all covered. The noble Lord, Lord Thomas of Gresford, used the neat word ““complicit””. I hope that I am right in thinking, as I think he does, that a solider who uses unlawful physical or psychological restraints and techniques to interrogate prisoners entrusted to his care is guilty of torture, as are colleagues who stand by or watch what is going on, because they have surely consented or acquiesced, to use the words of the Bill, in the infliction of serious pain and suffering. I have two questions for the Minister. First, and I do not think that this phrase has been used today, what is the position on superior orders? We all remember the attempt to use the defence of superior orders at Nuremberg. We know that, generally speaking, superior orders are not a good defence. It is many years since I did my national service. Half a century ago, my copy of the Manual of Military Law was well thumbed, although I have hardly opened it since. However, I opened it recently and saw that it takes the strong line that the belief—albeit reasonable—that orders are lawful is no defence. That view has not gone unchallenged, because a soldier is trained to obey orders not just casually but instantly. It may not be realistic to expect a soldier to consider whether the order given is lawful, even if it is not manifestly unlawful. To have him contemplate that in the urgency of the occasion is difficult. Secondly, Clause 3 states that, if a state is sued for compensation for torture, it is not immune from proceedings. Are the Government willing to go along with that, irrespective of what other Governments do? I wish the Bill good fortune.