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United Nations Convention Against Torture

My Lords, next week our highest court will begin hearing one of the most important cases of our times. The judges in the House of Lords are to examine the issue of torture and are being asked to determine whether the Home Secretary can use as evidence material that may be the product of torture. The political pendulum has already swung to unimaginable places, but this is a place beyond imagining. While torture is universally condemned, here we are in the 21st century still debating the acceptability and usefulness of torture and its products in certain circumstances. We talk about ticking bombs, a hypothesis that is never grounded in any real case. I am always cautious about any form of national boastfulness but, as we thrash around in search of the values that lie at the heart of being British, one of the values we can feel proudest of is that it was here that institutional opposition to torture was first formulated. One of the distinguishing features of English common law from its earliest inception was its outright rejection of torture as a method of proof. It is one of the defining characteristics of our law. As such, it is a constitutional principle, and we should feel proud of it. In Felton’s case in 1628, the judges made the position very clear, holding that evidence obtained by torture was inadmissible. They placed an absolute prohibition on torture and any use of the product of torture in the courts. Rendition, however—not new, I have to tell my friends—was a problem even then. Scotland continued to torture suspects and witnesses for 50 years after England. We used to send detainees up to Edinburgh for a bit of stretching on the rack. Happily, Scottish judges and the people of Scotland railed against the horror of what was happening, and Scotland became the first country to legislate against the use of torture, in the Treason Act 1709. The principled opposition to torture is deep in the bowels of the UK legal systems. The reason for the rule against torture and its products is the outrage to civilised values that torture necessarily involves. Once exceptions to the law prohibiting torture are created, those exceptions will be abused. Once you give legitimacy to torture, you open the space for more torture. Around the world, good men, sitting as judges, have stated the obvious. McNally, a judge in the Supreme Court of Zimbabwe, in the case of Nkomo in 1989, said:"““It does not seem to me that one can condemn torture while making use of the confessions resulting from torture, because the effect is to encourage torture””." Justice Barak, President of the Israeli Supreme Court, in that famous case in 1999 about torture and its use in Israel, condemned it:"““By using torture or . . . the fruits of torture, the state weakens its case against terrorists, by adopting their methods, and it loses the moral high ground an open democratic society enjoys . . . Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand””." Our signing of international conventions does not just impose a duty to refrain from torture, but creates an obligation to condemn and deter torture and to suppress all its manifestations, which means also using it for evidence in our courts, even if it is happening somewhere else. Our own Lord Justice Neuberger, dissenting in the Appeal Court judgment, said:"““To admit evidence obtained by torture is implicitly to condone it””," and it was also said by the human rights commissioner for the Council of Europe in his report in June this year. The Government’s position, however, is that they refuse to rule out accepting evidence suspected of being obtained by torture, as long as our agents have not been involved in it. Even worse than that, the real rub is that we will not ask foreign intelligence sources the million-dollar question of whether torture was used to secure the information we are using in our courts. I understand that the policy is ““don’t ask, don’t tell””, and I would like to hear from the Minister whether indeed it is. If so, it is a pathetic and shameful avoidance of our moral responsibility. If we are able to say that we did not knowingly use torture, because we did not bother to ask, those are weasel words. If we really want to change our commitments, the Government will have to go to Parliament. If we want to use the fruits of torture as evidence, we should legislate to do so, and it should be for the democratically elected legislature, after full and informed debate, to spell out that purpose. I do not believe the people of Britain want us to connive in torture, and I hope Parliament would find it an absolutely disgraceful prospect. I find it hard to imagine it is a legacy of which Mr Blair would be proud.