---

United Nations Convention Against Torture

My Lords, in the wake of the London bombings, the Prime Minister said:"““Let no one be in any doubt that the rules of the game are changing””." By that, he apparently meant that the rules within international human rights law, including the UN Convention Against Torture and the Human Rights Act, need changing. That impression was sadly strengthened when the Lord Chancellor appeared to warn British judges that they might have to be instructed by Act of Parliament on how to interpret and apply the prohibition against torture in Article 3 of the convention more restrictively than the Grand Chamber of the European Court had done in the Chahal case, by giving greater weight to national security. What the Prime Minister finds objectionable in the court’s ruling is that even if someone is a threat to national security he must not be deported to a country where there is a substantial risk that he will be subjected to torture. That ruling, as has been said, is reinforced by Article 3 of the UN Convention Against Torture. Mr Blair said:"““We may have to amend the law to get it done””." In my view, it is quite inconceivable that the Strasbourg court or the English courts would now interpret Article 3 more narrowly, or would overlook the binding obligations in the Convention Against Torture. That is confirmed by the magnificent recent unanimous judgment of the Supreme Court of New Zealand, which rejected the obnoxious balancing test. The Government’s intervention in a pending Dutch case before the European court to try to reverse or limit Chahal is an exercise in forensic futility, which in my view is doomed to failure. There is of course a dilemma that no one else has yet mentioned, and which human rights NGOs need to face up to. What is to be done with a really evil, dangerous, subversive person who cannot be tried in this country, and about whom there are reasonable grounds for suspecting that they are a threat to national security, and where they are alleged to have committed serious crimes in a most unpleasant country that has a record of torture? What is to be done with such a person? If such a person remains here, they are to remain under house arrest, or indefinite detention, or something else of that kind. If they are sent to that country, they will face torture. For that reason, I commend the Home Secretary for seeking binding international agreements, as we do with the United States in respect of the death penalty, provided that those international agreements contain specific assurances, in clear terms, with strong and continuing independent monitoring, as has been said by other noble Lords. If that can be achieved, as it has been in the United States with local state prosecutors in respect of the death penalty, in principle the courts, looking at the facts of each case independently, would give full faith and credit to agreements of that kind. The problem is whether one can really negotiate a memorandum of understanding with safeguards. Finally, I hope that the Law Lords will soon decide that the Convention Against Torture can be interpreted and applied as though it had been incorporated by legislation in this country to forbid the use in British courts of evidence tainted by torture abroad. I also hope—this may seem ludicrous—that the Government will decide eventually to incorporate the UN Convention Against Torture and the International Covenant on Civil and Political Rights, as have done the other major countries of the European Union and the Council of Europe, into our domestic law, so that our judges do not have to seek to fill the gap by some creative judicial lawmaking.