Torture (Damages) Bill [HL]

My Lords, like so many other noble Lords who have taken part in this debate, I, too, pay tribute to the noble and learned Lord, Lord Archer of Sandwell. Many people, both in and out of public life, consistently and rightly express their repugnance at torture and all acts associated with it. However, what distinguishes the noble and learned Lord, as the noble Lord, Lord Judd, said so graphically in the opening phase of his speech, is that whether in government, in opposition or from the Back Benches of his party, the noble and learned Lord has consistently striven to do something practical about it. The Bill is only the latest example of what the noble and learned Lord has done, and the country owes him a great debt for having been so persistent for I hesitate to mention how many years; I know that it is several decades since he held the great office of Solicitor-General. At any rate, I hope he will not mind my saying that it has been a very long innings and that he deserves all our congratulations. As the noble and learned Lords, Lord Archer and Lord Woolf, among others in your Lordships’ House, have said, the origin of the Bill lies in the case of Jones v The Ministry of the Interior of Saudi Arabia, which was heard as recently as 2006. This case, as the noble and learned Lord, Lord Archer, has explained, concluded that the United Kingdom courts had no jurisdiction to hear a civil claim against a foreign Government with regard to acts of torture inflicted outside the United Kingdom jurisdiction. The core of the judgment was an analysis of the State Immunity Act 1978 and the exceptions to it, set out in Sections 3(1)(a), 4 and 6. The conclusion reached was that as torture was not one of the exceptions to that Act, there was no jurisdiction to hear such civil claims. The greatest merit of the Bill is that it reverses that decision in domestic law. That is wholly admirable. The noble and learned Lord, Lord Archer, emphasised that his approach to the Bill, although influenced by the convention on torture, was not reliant on it. In fact, there are other important precedents around the world to support its clauses. It is particularly illustrative of the way in which the noble and learned Lord has approached the Bill that in the United States in 1992, the Torture Victim Protection Act was adopted, which permits individuals located in the United States to sue foreign Governments responsible for torture; so there is an important precedent for us across the Atlantic. France, Germany and Spain all have civil remedies that are attached to criminal provisions. We, too, as the noble and learned Lord has indicated, have, in Section 134 of the Criminal Justice Act 1988, adopted universal jurisdiction in criminal law in relation to torture, to which the prosecution of Faryadi Zardad in 2005 attests. The interpretation of Article 14 of the convention, as I think the noble and learned Lord, Lord Woolf, suggested, is another matter. Once the state immunity inhibition is removed—if the Bill is passed—it is not, as the noble and learned Lord indicated, the end of the story, because there is still the international law on state immunity, which might continue to inhibit a private action in our own courts from succeeding. It would be wrong of your Lordships to think—I am sure that none of you does—that the mere passage of the Bill will necessarily achieve the objectives so eloquently expressed by, among others, the noble Baroness, Lady D’Souza. If the Bill is passed by Parliament, it will be the beginning of the journey, not the termination of it. The noble and learned Lord, Lord Archer, at the outset, explained why he thought that the Bill was desirable. The three issues that he highlighted are fundamental to the Bill’s merits. First, at the individual level, the physical and psychological injury done to the victims of torture, as so many of your Lordships have indicated, is likely to be irreparable. Compensation will help them to face up to lives that have been horrifically damaged. It can do no more than that. Nevertheless, it is right that that compensation is received. Secondly, it is morally wrong that individual states should be allowed to hide behind the State Immunity Act 1978 in relation to torture. Thirdly, we all hope that it would act as a deterrent to states practising torture. All three of those arguments are irrefutable. A number of your Lordships have talked about the details of the Bill. I was delighted to hear my noble friend Lord Sheikh draw your Lordships’ attention to the provision which draws in complicity, a point that the noble Lord, Lord Thomas of Gresford, also emphasised. It is right in a Bill of this sort that that should be one of the bases on which a civil action could be brought. The 1992 United States Bill has a similar provision on the effectiveness of seeking some form of compensation in the alleged torturer’s state. I know that the noble Lord, Lord Thomas of Gresford, has hesitations about that, as do one or two of the non-governmental organisations which support this legislation. However, it is right that such a matter should be thoroughly investigated by their own domestic courts before allowing an action to go ahead. If there is a proper set of domestic procedures in the state of the alleged torturer, it is to those that our own legal system should yield until the matter has been resolved. It is only if it has not been resolved that the provisions of the Bill introduced by the noble and learned Lord, Lord Archer, will begin to take effect and there subsequently will be a six-year limitation period. In my view, the noble and learned Lord has got the balance exactly right. In conclusion, there is of course a range of difficulties connected with the appearance of the defendant and how the defendant is represented, and a raft of evidential issues which will have to be confronted and overcome before the Bill can have, if it were to become law, operational effect. But that should be no deterrent and certainly is not a deterrent as a matter of principle. The noble and learned Lord, Lord Archer—I am repeating myself in saying this, but it cannot be too often repeated—has done Parliament a major service by bringing this Bill to your Lordships' House.