UK policy on torture and the treatment of asylum claims

The text of the motion is:

That this House has considered UK policy on torture and the treatment of asylum claims

The bid to the Backbench Business Committee may be heard on parliamentlive.tv

Torture has long been prohibited by the common law, as Lord Bingham described in a 2005 House of Lords judgment:

It is … clear that from its earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law … .

…

In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.

(A v Secretary of State for the Home Department [2005] UKHL 71 [11])

The English Bill of Rights of 1688 provided that “cruell and unusuall punishments” should not be inflicted, and in Scotland torture was prohibited under the Treason Act of 1708.

The contemporary legal framework prohibiting torture is set out in a number of different international treaties and instruments and in domestic legislation.

Article 3 of the European Convention on Human Rights (ECHR) states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The ECHR is given effect in domestic law by the Human Rights Act 1998, which places an obligation on public authorities to act in compliance with the ECHR.  

Unlike other Convention rights, the prohibition on torture is absolute, meaning that it is not limited by exceptions, and derogations from article 3 are not permitted, even in times of war or public emergency.

The prohibition in article 3 is closely modelled on article 5 of the Universal Declaration of Human Rights.

The UK has also ratified the 1984 UN Convention Against Torture and Other Cruel Inhuman or Degrading Punishment (UNCAT). UNCAT defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

As a matter of domestic criminal law, torture is prohibited by section 134 of the Criminal Justice Act 1988, which defines it as the infliction of severe pain or suffering by a public official in the performance of his public duties.

In practice, these legal principles tend to arise in certain specific contexts, such as intelligence cooperation with regimes that use torture; the admissibility of evidence obtained through torture in legal proceedings; the extradition or deportation of individuals to jurisdictions that practice torture; and, asylum applications.

Home Office Asylum Policy Instructions guide asylum caseworkers in making decisions on asylum applications. A November 2016 report by Freedom from Torture claimed existing Home Office policy is not being followed and that expert medico-legal reports are poorly handled by caseworkers. Following publication of the report, the Minister for Immigration reiterated the policy guidance and Home Office officials undertook a review of the cases to which it referred.