Torture and the Treatment of Asylum Claims

Tom Tugendhat Excerpts

Thursday 2nd March 2017 Westminster Hall

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am grateful, Mr Bailey, that you have found time for me to make a brief contribution to this important debate. I very much welcomed the words of my hon. Friend the Member for Twickenham (Dr Mathias), who spoke eloquently on many of the matters that I might otherwise have covered.

In the United Kingdom it is not new for us to be talking about torture. In fact, we have been talking about torture in this House for much of the past 1,000 years—although we were ordering much of it for an awfully long time, too. Various people including, most famously, Guido Fawkes were taken from inquisitions to appear before politicians, often in the Star Chamber, and ended up being tortured in places such as the Tower. We have long experience of torture in this country.

From bitter experience, however, we know that torture does not work—people get the answer they want, or think they want, rather than the answer they need. That is why sensible countries, ones that realise that the rule of law is about discovering the truth and not about exacting punishment, do not practise torture. I am proud that our country set the model on that through two Acts: the Bill of Rights; and the Treason Act 1708, which included Scotland—I say that for the benefit of the Members representing Scotland, the hon. Member for Rutherglen and Hamilton West (Margaret Ferrier) of the Scottish National party and the right hon. Member for Orkney and Shetland (Mr Carmichael) from those various islands of our wonderful country.

Those fundamental Acts set out what we now think of as a universal right under the United Nations or European conventions, which is the right not to be tortured. Unlike other rights, that right is completely unqualified: there is no situation in which torture is possible; there is no situation in which a country may derogate from that right; and there is no situation in which torture is ever tolerable. Even the right to life, we admit, is not absolute. If it were, the intervention to prevent people dying would be absurd, or a battle to protect our nation’s interest would be impossible. Torture is not like that; torture is an absolute, and it is so because it violates the very principles of a free and democratic society. It violates absolutely the integrity of the individual. It violates totally the right to life and the principles that have grown up in various ways from Judaeo-Christian and Islamic tradition. That is why it is so utterly abhorrent to us.

I am glad that we are holding this debate because it allows us to reinforce those views of torture and, I am sure, for the Minister to reinforce them on behalf of Her Majesty’s Government, and to remind ourselves why they matter. Those views are not simply about carrying a banner of principle for us to wave at others in some sort of virtue-signalling way. That is not what they are about. Our views of torture are about protecting ourselves. The reason why we do not torture is not only a moral but a selfish one. We do not torture because it is wrong to do so, and because it leaves us more vulnerable and not better protected. Torture would leave us more exposed and in greater danger. That is why we do not do it.

The debate today is focused on asylum; that is not only about people coming to us but about stopping people needing to come to us. It is about nations with whom we very often and in many ways have good relations, whether in trade, culturally or historically—we often have very good relations with countries that practise torture. Part of our duty as a responsible, free and democratic state is to help our partners and, yes, even our friends to understand that torture is wrong, not only for moral reasons but because it is bad for them. Torture promotes violence, instability and the very unrest that many countries are seeking to prevent.

I will leave it there, except to pay tribute to some organisations, such as those that the hon. Member for Harrow West (Mr Thomas) mentioned when talking about the forms of torture that often are not recognised or are overlooked. I also pay tribute to an organisation that has done a lot to promote human rights—that is not to say that I agree with every one of the cases it has brought, because I certainly do not. The AIRE Centre—Advice on Individual Rights in Europe—did an awful lot of work with some of the new accession states to the European Union and with some of the states newly freed from Soviet tyranny to help them understand what rights are, why they matter and, in that context, why torture is always wrong. There are such organisations out there, and I very much welcome the work of Her Majesty’s Government to support them. I am glad to see cross-party support in the debate on such an important issue that is fundamental to our democracy and our freedom.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I, too, express my gratitude to the members of the Backbench Business Committee for allowing us the time to debate this subject. I commend the hon. Member for Twickenham (Dr Mathias) for her leadership in securing the debate. I note that, in a minor way, the pronunciation of the constituency of the hon. Member for East Kilbride, Strathaven and Lesmahagow (Dr Cameron) risks becoming, for some people, an instrument of torture in itself.

The hon. Member for Harrow West (Mr Thomas) posed some very relevant and pointed questions to the Minister regarding the training of caseworkers in the Home Office. I will not repeat them, but they were pertinent and ones with which I would very much wish to associate myself.

Like others, I place on the record my appreciation for the many non-governmental and campaign organisations that work in this field. Freedom from Torture was mentioned, and I was present in November at the launch of its most recent piece of work, “Proving Torture”. I have been associated with Reprieve for many years and have campaigned with Amnesty International in different parts of the world over the years, principally on the abolition of the death penalty but also on human rights concerns more widely.

Whenever I have been in other parts of the world, it has struck me that however much we may beat ourselves up about our past misdeeds, foreign policy failings and other things, we are still seen, by and large, as a force for good in the world. That goes to the point that the hon. Member for Tonbridge and Malling (Tom Tugendhat) made about the counterproductive nature of torture. It also touches on the point made by the hon. Member for Twickenham that we are a world leader in this area, and it is more important now than ever that we maintain that position.

At Foreign Office questions some time ago, I asked the Foreign Secretary whether he had raised the possibility of sharing intelligence with the Trump Administration in the event that they reverted to the use of torture, such as waterboarding or, as the President said during the campaign, something

“a hell of a lot worse”.

In the House, the Foreign Secretary said that that was an operational matter that he would not comment on —I think it is more a matter of policy myself—but in later correspondence he returned to the quote that the hon. Member for Twickenham offered us from the Prime Minister, who said that

“we do not sanction torture and do not get involved in it. That will continue to be our position.”—[Official Report, 25 January 2017; Vol. 620, c. 291.]

Those sentences should be on the desk of every Home Office and Foreign Office Minister. I would like to hear a more express statement about the possibility of sharing intelligence with any country in the world that uses torture, both because of our leadership position and because we must atone for some of our quite recent failings in this area.

[Tom Tugendhat]

The right hon. Gentleman heard me speak, I hope very clearly, about my views. I merely caution that we should use slightly more modified language than, “We share no intelligence with anyone who uses torture.” That would exclude so many people with whom we need a relationship built on trust. In many ways, our intelligence services, rather than NGOs or diplomats, are some of the best people to preach the message of freedom from torture.

[Mr Carmichael]

That is a fair point. I put it in those terms—I know the hon. Gentleman’s background—because we have some damage to repair.

I am mindful of your strictures about the sub judice rule, Mr Bailey. We now have the final Supreme Court judgment in respect of the Government’s preliminary points in the Belhaj and Boudchar case, which I referred to earlier. I will not talk about the substance of that case, because that would clearly be inappropriate and I would be ruled out of order, but it is a matter of public record that the Government so far have spent £750,000 pursuing those unsuccessful preliminary points. The case will presumably go through the courts to whatever conclusion is reached, but it is worth reflecting that we have got this far at the cost of £750,000 but we are just back at the starting line, and a lot more could still be spent on that case. The plaintiffs have offered to settle for £3—£1 each from the Government, the former Foreign Secretary and Sir Mark Allen, whose involvement in the case is fairly well documented.

The al-Saadi case, which was very similar, was settled out of court without any requirement for the case to be taken. More significantly, Belhaj and Boudchar want an apology as well as their £3. No apology was made in the al-Saadi case, but it cost the British taxpayer some £2.2 million. That is why it is important that as we enter a new phase of international relations with a new Administration in the White House, rightly or wrongly, we should have concerns about their approach to torture and put out there the highest possible standards. We should not forget—the Crown Prosecution Service has already said this—that Sir Mark Allen sought political authority for his actions in the al-Saadi and Belhaj cases, so it is difficult for us as a country to deny any knowledge or complicity in them.

Freedom from Torture’s “Proving Torture” report contains several highly concerning statistics from the sample of cases that it examined, and I will remind the House of some of those. Some 76% of the cases that Freedom from Torture studied in preparing that report eventually resulted in successful appeals. I take the Minister’s point that new information is sometimes provided on appeal that was not there in the first instance. Appeals may succeed for any number of reasons, but the fact that 76% of cases resulted in asylum being granted on appeal should concern Home Office Ministers. I suspect that if a judge sitting in a sheriff court in Scotland or perhaps a Crown court in England had 76% of his or her cases overturned on appeal, the Lord Chancellor would look carefully at the way that judge went about his or her business.

There is more context in that report to support my contention that the 76% figure is concerning. In 74% of the cases examined by Freedom from Torture, asylum caseworkers substituted their own opinion for that of clinicians, and in 30% of cases, asylum caseworkers disputed or queried clinicians’ qualifications or expertise. Those things should cause concern. They give context for the 76% of successful appeals that I referred to and relate to the points raised by the hon. Member for Harrow West.

The hon. Member for Twickenham was absolutely right to say that the Home Office has a duty of care towards people who do such enormously difficult and taxing work, from which significant political pressure is never far away and which is done in the professional context of an occasionally toxic debate. I worked as a public prosecutor for some years a long time ago. No one was supposed to work for more than six to 12 months at the very most on cases involving the sexual abuse of children, because they were such difficult and taxing cases, and the people who were involved in that sort of work ended up being burnt out. For that reason, I suspect that rotation among caseworkers who do asylum work should be taken a bit more seriously than it appears to be.

I am mindful of your strictures about time, Mr Bailey, so although I could probably say a great deal more about this subject, I shall conclude my remarks and allow others to take part.

--- Later in debate ---

[Dr Huq]

I do not doubt the hon. Lady’s commitment to human rights, given everything she has said on them in the Chamber. The Home Secretary is due to visit Saudi Arabia later this month; it will be interesting to see if she will use that opportunity to challenge one of our “closest allies” on some of the less palatable aspects of its record on human rights and torture. At a recent Prime Minister’s Question Time, my right hon. Friend the Leader of the Opposition asked the Prime Minister to condemn President Trump’s comments on torture. He has supported things like hooding, which is sensory deprivation, stress positioning and waterboarding, which the hon. Lady mentioned. President Trump seems to have a gung-ho attitude to those and does not equate them with torture. I would like to hear stronger statements from our Prime Minister condemning those comments.

[Tom Tugendhat]

Will the hon. Lady give way?

[Dr Huq]

I have limited time and the hon. Gentleman spoke at length earlier; I will be happy to speak to him afterwards. I think any special relationship should also be friendly. We can be a critical friend to countries and point these things out; maybe not holding their hand but holding them to account in some way. We are debating the UK asylum system and not any of these other people, so I will get back to that.

We all seem to have seen the same figures from Freedom from Torture’s “Proving Torture” report. Other Members have made those points very graphically. We have to consider the moral dimension to this, as well as our legal obligations; we are talking about protection for the most vulnerable in our society. The statistic just quoted was that 27% of adult forced migrants living in high-income countries have survived torture in their country of origin, yet we continually hear stories of their humiliating treatment when they seek to prove it. The standard of proof seems to be very high, and it is often confusing when they have to prove what happened to them. It is a chicken and egg situation. There is little other than medical evidence to prove their torture, but it is nigh on impossible after the fact to prove that it was torture, even when extensive medical evidence is presented; we hear that medical evidence is often disregarded, mistreated, misinterpreted or ignored by the Home Office. It would be good to hear the Minister clarify how that can be tightened up.

Hon. Members also quoted the fact that 76% of such cases that are unsuccessful are overturned on appeal, which is alarmingly high when compared to just 30% of standard asylum cases and indicates a serious problem in the Home Office’s handling of asylum claims. As the hon. Member for Twickenham pointed out, that requires correction by a judge in a specialist immigration tribunal, which comes at considerable cost to the public purse—UK taxpayers.

Not only is it International Women’s Day next week but apparently March is also International Women’s Month, so it is worth pointing out that rape is shockingly not recognised as torture for women asylum seekers. I think that will come as a surprise to many hon. Members. Women remain particularly vulnerable to deportation. My hon. Friend the Member for Harrow West referred to legal aid for asylum cases; I know that that is probably another debate for another day, but I flag it up as it is connected to this debate. I have also had constituents from Sri Lanka pressing me. There was a debate in this place last week that I was unable to attend, but I am glad that my hon. Friend expressed his concern about the Sri Lankan Government’s torture record and that we should treat asylum seekers from that country with the respect that they deserve.

I wanted to be brief, but while I am here I will flag up my concern that we may be led out of the European Court of Human Rights; I believe that the plan has been shelved for this Parliament, but it could still happen. It is a live policy.

[Tom Tugendhat]

Will the hon. Lady give way?

[Dr Huq]

I have said that I will press on without interventions on this occasion. The ECHR is one of the most effective torture prevention tools in history, and it was drafted by British lawyers, including Sir David Maxwell Fyfe, then a Conservative Member of Parliament. Having our own, unilateral British bill of rights seems to send the signal to countries with questionable human rights records, such as Russia and Turkey, that international human rights obligations can be shirked or are an optional extra. It also undermines the Government’s foreign policy objective of championing a rules-based international system.

I know that the Minister has received a lot of questions from other hon. Members, but I have one for him. I think the systematic decision-making errors that we keep hearing about in these cases are a matter of quality control and auditing. Will the Minister reaffirm the UK’s position as a champion for the absolute ban on torture? I am optimistic that he will. Will he also implement immediate measures to improve decision making in asylum claims made by survivors of torture to address those weaknesses?

We live in tumultuous times of turmoil and turbulence, when the only predictable thing is unpredictability. The UK has a proud history of standing up for human rights and taking care of people in need, and it has never been more important to reaffirm that commitment and make sure that it works in practice.