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* The number of Not-Contents was reported to the House as 227, because one additional name had been recorded in error.

4.56 pm

Lord Garden moved Amendment No. 7:

The noble Lord said: My Lords, I shall be brief in moving Amendment No. 7, not because it is unimportant but because we discussed it at each stage of the Bill when noble Lords were most helpful in developing its language. I considered the suggestions made by the noble Earl, Lord Attlee, on Report about the importance of broadening the scope of the amendment to cover all the services rather than only the commanding officer. While I am sympathetic to that, we have achieved a wording that is focused and appropriate and that received a degree of consensus around the House on Report.

The aim of the amendment is to ensure that commanding officers are not put in an impossible position when mysterious foreign aircraft are given clearance to make use of their facilities. I remind noble Lords that such occasions have arisen at Royal Air Force Brize Norton and Royal Air Force Northolt, as we have heard. In getting the language right, I wish to acknowledge the great assistance given by the noble Lord, Lord Kingsland, in reminding us of the responsibilities of a commanding officer. They cannot be abrogated, which is an important element of the new clause. It makes it possible for the Defence Council to make the necessary regulations in order to clarify what commanding officers should do, although they cannot absolve themselves of their responsibilities under international law.

Our debates have inevitably focused specifically on extraordinary rendition and the universal abhorrence of such flights where suspects are transported to distant locations to be interrogated under conditions which amount to torture under the international definitions. I know that we will examine the amendment with that in mind. However, I have made it forward-looking in the sense that it gives the Defence Council the authority to look at other possible violations of international law. One might think of cases where there is a breaking of international sanctions in transferring weapons to a theatre by air or other breaches of international law.

This is the opportunity to give commanding officers the appropriate guidance so that they will not

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find themselves accused of, in the case of extraordinary rendition, helping to facilitate torture or other breaches of international law. Such cases can be brought. In Committee, I referred to a case in Italy where a military officer had been charged in connection with extraordinary rendition.

We have argued the case sufficiently and have all reached an agreement—including on the government Benches—that we abhor extraordinary rendition. This amendment would discharge our responsibilities to people in the military in difficult circumstances commanding military airfields through which flights are being directed under uncertain circumstances. I beg to move.

5 pm

Lord Campbell of Alloway: My Lords, I shall be brief. We now know, as the noble Lord, Lord Drayson, said on 12 October, that arrangements for these flights are,

We also know, from the noble Baroness, Lady Scotland of Asthal, on 18 October (at cols. 782 and 783 of the Official Report) that these were not arrangements made between the UK and the US. The grant to foreign aircraft to overfly or leave our military airfields in the UK was given by diplomatic clearance under “customary” and reciprocal international law of which the principles were not clear. That had happened “for decades”, and the Chicago Convention does not apply. She also said that we expect that if there is something to do with rendition then they will tell us, but that there is no obligation to do so.

The right in this arrangement, which has apparently gone on for decades, is diplomatic clearance sought with or without permission. I do not know quite what that means. If you are seeking diplomatic clearance, I think that means that you are asking permission, and I assume that that permission is either without asking the purpose or not. I am a bit lost in that diplomatic sea.

Where do we go from here if that is right? The United Kingdom cannot unilaterally opt out of such an international arrangement, which by custom is not justiciable and could not be enforced in any court of law. Resorting to the ECHR, the Human Rights Act 1998 and other international conventions would also be excluded, as you cannot challenge the operation of diplomatic conventions in any court of law. This amendment is destined to drift into the “ebb-drawn shoals” of an Orcadian poet, in which the series of sister amendments already lies in limbo.

The intendment of this amendment could be dealt with through bilateral agreement between the United States and ourselves. That would require granting clearance to overfly and so forth—and taking off in the UK only if satisfied as to compliance with legal requirements and international obligations, the provisions for inspection provided by the US for take-off and with regard to passenger lists or bills of lading for cargoes of weaponry. It is not for me to draft the provisions of such an agreement, but I

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mention this to show the sort of arrangement that could be made by diplomacy. It is really beyond the point to ask why permission was granted for two out of four flights. What happened to the large remainder? Why was no explanation of these arrangements—I am glad to see the noble Lord, Lord Triesman, in his place—given in response to my Unstarred Question, on which I was helped by my noble friend Lord Kingsland?

On 18 July, we had no inkling of what I have mentioned to your Lordships today. Indeed, no one had an inkling before 12 or 18 October. I am not saying this to criticise the Government because there is no use in doing so. Neither is there any use in asking a whole series of questions that you might as well ask Martin Gilliatt’s one-glass-eyed teddy bear.

Lord Lyell: My Lords, I hope that I will not be considered mischievous, but I wonder whether the noble Lord, Lord Garden, let alone my noble friend Lord Kingsland, might be able to explain “flights by foreign aircrafts”, which is in the plural and in heavy print. To what do these refer? The noble Lord, Lord Garden, referred to two Royal Air Force stations—I think Brize Norton and Northolt. It may interest him to know about Royal Air Force Machrihanish, an airport with very large facilities that is not too far from the home of my noble friend Lord Lang of Monkton. Various sightings have been reported in the Scottish media of exotic types of aircraft, which I presume were on their way to various bases, perhaps elsewhere in Europe. I hope they are not flying saucers or other flying machines. The noble Lord, Lord Garden, and other noble Lords who have spoken have made a case for the Minister to clarify. I simply wonder why “foreign aircrafts” are in the plural.

Lord Kingsland: My Lords, I spoke at some length in Committee about what I saw as the legal position on this matter, and I am most grateful to the noble Lord, Lord Garden, for his remarks about that this afternoon. I shall simply summarise to your Lordships once more what I believe that legal position to be. If a commanding officer on station apprehends that a foreign aircraft that has landed at his aerodrome contains someone who is on their way to being tortured, he has a binding legal duty to inspect the contents of that plane irrespective of any superior orders in the chain of command. If he does not do that, he will be complicit in the international crime of torture and personally liable to be prosecuted under international criminal law. Therefore, whatever amendment we make to the Bill on this matter will, strictly speaking, be irrelevant because the legal duty is there. It is inescapable for the Government.

Since Committee, the noble Lord, Lord Garden, has been thinking about how he can deal with this matter, and I am perfectly content with the amendment that he has come up with now. It seems in no way to cut across my analysis of the legal position. While I do not think it is necessary, it is in every other respect compliant, which is why I have put my name to it.

Earl Attlee: My Lords, I strongly support this amendment. Our Armed Forces should have nothing

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to do with extraordinary rendition. It is just as abhorrent as slavery and as easy to detect. I accept the view put forward by the noble Lord, Lord Garden, on my amendment about widening the provision. But it is clear that an officer in the staff, in the chain of command, will be involved in the planning of any extraordinary rendition flight should it occur. The staff must be clear on their position and their legal responsibilities. I strongly support the amendment.

Lord Boyce: My Lords, I wish to approach this amendment from a slightly more practical point of view. The noble Lord, Lord Garden, has said that one reason for the amendment could be to avoid putting the commanding officer in an impossible situation. But the practical aspects of this will achieve exactly that and will put him in an impossible situation.

The responsibility for a foreign aircraft landing at one of our military airfields is with the Foreign Office, which gives the diplomatic clearance, not the commanding officer. If there is a suspicion or worry that an aircraft may be doing something improper, such as being used for extraordinary rendition, it is up to the Foreign Office to deny that flight. It is not for the commanding officer to sort out when he gets it on to his airfield. The noble Lord, Lord Kingsland, has made it clear that the amendment is unnecessary because there is a legal binding duty on him to search the aircraft if he thinks that there is extraordinary rendition. But he should not be expected to search every aircraft that arrives in case it is doing something illegal. That should not be his responsibility. If it is, it will lay on him a most enormous burden. In comprehending the implications of the amendment, we must also think about what will happen to our military aircraft when they go through other military airfields where, presumably, there will be some tit-for-tat and reciprocation in treating our aircraft similarly. I do not believe that this amendment is necessary.

Lord Inge: My Lords, I will be brief. I strongly support the remarks just made by the noble and gallant Lord, Lord Boyce.

Lord Drayson: My Lords, I shall deal in some detail with all relevant issues that arise out of this amendment. Having done so, I hope that noble Lords will agree that it is not an appropriate clause for this Armed Forces Bill. As we have heard, the amendment obviously raises the issue of extraordinary rendition. I do not intend to spend any time on that, first, because the Government’s position has been set out on many occasions and is clear, and, secondly, because I believe that when considering a Bill dealing with the Armed Forces it is not appropriate to be sidetracked from this. We all know that this Bill is principally designed to provide a system of law for our Armed Forces which will allow them to continue to operate to the high standards that they consistently achieve now and ensure that they do so well into the future. So I want to concentrate on the issues that are relevant to this Bill—the issues that are relevant to our Armed Forces—as I am sure do noble Lords. I consider that the only relevant issue is regarding the

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responsibilities of servicemen and, in particular, commanding officers. I can confirm that my noble friend Lord Triesman would be happy to offer noble Lords a detailed briefing and discussion to explain the legal aspects relating to extraordinary rendition if that were felt to be helpful.

The motivation of the noble Lord, Lord Garden, on this amendment is, I believe, the vulnerability of the commanding officer to criminal prosecution. I believe that that is misplaced in a number of respects with which I will now deal. It does not work and, even if it could be adjusted, it would add nothing to what is already provided for in general domestic law. First, I will deal with the arrangements that already exist for the handling of foreign aircraft at military facilities. Civilian aircraft are subject to the provisions of the Chicago Convention, which generally permits such aircraft to make flights into, or transit across, the territory of the United Kingdom. The convention does not prohibit UK civilian authorities entering the aircraft or dealing with any suspected criminal activity on board.

It is therefore open to the three authorities that have responsibility for our borders—the police, Her Majesty’s Revenue and Customs and the UK Immigration Service—to carry out investigations if they consider that there is reason to suspect such criminal activity. This is of course subject to any diplomatic or sovereign immunity that applies. We cannot alter this. For example, if the Defence Council made regulations under this amendment that purported to empower our police to open diplomatic property, far from meeting international obligations, we would end up in breach of them.

5.15 pm

Although they are not subject to the Chicago Convention, all foreign state aircraft, including military aircraft, must not fly over the territory of another state or land without authorisation by special agreement or otherwise. When a military aircraft wishes to fly over or land in the territory of the UK, whether at a military or a civilian airfield, it must obtain diplomatic flight clearance. Diplomatic clearance is a process that is designed to control UK airspace. If we were to suspect wrongdoing on aircraft, we could refuse clearance.

I know that some interest was expressed in the management of the process of diplomatic clearance. It is not relevant to the issues with which this amendment purports to deal, but, if it aids understanding, I am happy to explain it. Such clearances are dealt with by the MoD commitments staff who are responsible for the air defence of the United Kingdom. This process is designed to contribute to the defence of the UK, not to the enforcement of the criminal law. Bilateral agreements are in place with some countries that allow them not to apply for such clearance on a routine basis, but, even then, they must seek individual authority where they are carrying dangerous air cargo or VIPs.

Information on this procedure is provided by the MoD to all embassies and high commissions. It makes it clear that there are rules that apply to the granting of such clearance. The information includes,

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for example, reference to the applicability of customs and immigration requirements. It does not make specific reference to complying more generally with the domestic law or with international law, but such issues are taken as read. Where we give clearance, it does not provide any immunity to the aircraft to which it is granted, although foreign military aircraft and personnel sometimes have some immunity under international law.

The powers that our authorities could exercise in the circumstances would have to be decided by considering the facts of each case. It has to be recognised that we cannot override international law. However, I can assure the House that, should there be any evidence to suggest that any state was using the UK criminally to render people through it, the matter would immediately be taken up with the state involved to resolve the situation.

The Government are more than satisfied that the police, Her Majesty’s Revenue and Customs and the UK Immigration Service have sufficient legal powers to deal with any criminal activity. What powers they can exercise over foreign individuals and property will depend on the circumstances, but this is governed by international law. We cannot introduce legislation that goes beyond what international law allows.

Subject to international law, our authorities are able to react to any intelligence that suggests that an offence is being committed when foreign aircraft transit through our jurisdiction, including our military airfields. The guidance issued to embassies is being updated by the MoD. I would be more than happy to undertake to leave a copy of that guidance in the House Library if it would be of assistance.

However, I hope that I have clarified in general terms what the process entails and, in particular, the fact that we already control the entry of such aircraft into our airspace and can deal with any criminal activities that they might undertake. The amendment would not add anything more to this.

I am afraid that subsection (2) of the proposed amendment would, again, add nothing. Of course commanding officers—like anyone else—must not become parties to crime. As for the commanding officers’ “responsibilities under international treaties”, I am afraid that this is a misunderstanding of how international law operates. Treaties are made by and between states. They create obligations and responsibilities for states and a breach of treaty obligations is a matter of state and not individual responsibility.

Lord Thomas of Gresford: My Lords, does the Minister not accept that a commanding officer who turned a blind eye to a person who was being taken through this country for the purpose of torture might be indicted before the International Criminal Court? It is not a question of international law in the broad sense of treaties and foreign affairs; our concern relates to the International Criminal Court and charges that might arise as a result of breaches of the Geneva Convention.

Lord Drayson: My Lords, I am grateful to the noble Lord for making that point.

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A treaty whose purpose is to criminalise certain behaviour achieves its effect through the domestic law. So, for example, grave breaches of the Geneva Conventions and torture are a crime under UK law because of our domestic legislation. By ratifying the Geneva Conventions, states expressly undertake to enact legislation necessary to provide effective penal sanctions. The position is much the same in relation to the torture convention. The convention does not require criminal liability to be imposed on a person unless they are a party to a crime. The reality is therefore that compliance with our domestic law will avoid any criminal responsibility.

But I would add that, if the commanding officer suspects that any offence is being committed, he should take what steps he can to ensure that it is investigated. He could not be told by anyone not to do so. Depending on the circumstances, it would probably be sufficient for him to call in the police. This would apply to any other serviceman, too, and indeed to any civilian who had such concerns. Of course he himself would commit a criminal offence only if the nature of his involvement crossed the threshold of criminal liability. If there was evidence that it had, this would quite rightly be a matter for the normal prosecutions and trial processes.

To conclude, we are satisfied that the processes for handling foreign aircraft already make sufficient provision for compliance with both domestic and international law. The amendment could not give any more powers than our authorities already have. Commanding officers are not exposed to an unfair risk of prosecution. Most important, a commanding officer should involve—

Lord Campbell of Alloway: My Lords, I thank the Minister for giving way. Could consideration be given to my suggestion that there should be a bipartite diplomatic arrangement which in effect contained the intendment of the amendment? I will not go over that again. The noble Lord, Lord Triesman, may be able to help on this matter diplomatically. We are trying to establish this to show the world that we and the United States are wholly opposed to extraordinary rendition.

Lord Drayson: My Lords, I will carefully read in Hansard what the noble Lord has said and reflect on whether there is any merit in what he suggests and whether it adds anything to legislation as it exists.

If any commanding officer were to become involved in criminal activity, he would be liable to prosecution under criminal law—and, of course, it is right that he should be. I hope that that reassures noble Lords on this matter and that as a result noble Lords will conclude that the amendment is unnecessary. I ask the noble Lord to withdraw it.

Lord Garden: My Lords, I am grateful to the Minister for going into so much detail at Third Reading, much of which we have heard in relation not only to this Bill but to the Civil Aviation Bill and the Police and Justice Bill, when dealing with associated topics. Much of what he said was uncontentious, but he did not address the real question of what the poor commanding officer does.

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I shall address some of the contributions made by other noble Lords. The noble Lord, Lord Lyell, asked where the extra “s” came from in “aircrafts” in the amendment. I have no idea where it came from. We have been moving quite rapidly with this Bill and the editing must have gone wrong.

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