SIAC to receive third party torture evidence. But the English common
law has regarded torture and its fruits with abhorrence for over 500
years, and that abhorrence is now shared by over 140 countries which
have acceded to the Torture Convention. I am startled, even a little
dismayed, at the suggestion (and the acceptance by the Court of Appeal
majority) that this deeply-rooted tradition and an international obligation
solemnly and explicitly undertaken can be overridden by a statute and a
procedural rule which make no mention of torture at all. Counsel for the
Secretary of State acknowledges that during the discussions on Part 4
the subject of torture was never the subject of any thought or any
allusion. The matter is governed by the principle of legality very clearly
explained by my noble and learned friend Lord Hoffmann in R v
Secretary of State for the Home Department, Ex p Simms [2000] 2 AC
115, 131:
“Parliamentary sovereignty means that Parliament can, if
it chooses, legislate contrary to fundamental principles of
human rights. The Human Rights Act 1998 will not
detract from this powe r. The constraints upon its exercise
by Parliament are ultimately political, not legal. But the
principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or
ambiguous words. This is because there is too great a risk
that the full implications of their unqualified meaning may
have passed unnoticed in the democratic process. In the
absence of express language or necessary implication to
the contrary, the courts therefore presume that even the
most general words were intended to be subject to the
basic rights of the individual. In this way the courts of the
United Kingdom, though acknowledging the sovereignty
of Parliament, apply principles of constitutionality little
different from those which exist in countries where the
power of the legislature is expressly limited by a
constitutional document.”
It trivialises the issue before the House to treat it as an argument about
the law of evidence. The issue is one of constitutional principle,
whether evidence obtained by torturing another human being may
lawfully be admitted against a party to proceedings in a British court,
irrespective of where, or by whom, or on whose authority the torture
was inflicted. To that question I would give a very clear negative
answer.
-40-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents