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Lord Campbell of Alloway: My Lords, the noble Lord was good enough to mention my name. I thank him for giving way. If the noble Lord objects to what I put forward as a probable assumption, could he tell the House how on earth this could have arisen?

Lord Lamont of Lerwick: My Lords, there is strong suspicion that this is American practice. There is no reason to believe that the British Government have actively made an agreement with America. But I think that the Government are not asking questions and not seeking reassurance about what is going on in our territory with aircraft landing and over flying here.

I would accept the assurance from the Foreign Secretary that Britain does not participate in rendition. The British Government do not transport people to where they are tortured. But I must say that I have more scepticism about what has been said by the American Secretary of State, Condoleezza Rice. Although she has said that the American Government do not transport people to be tortured, there seems to be some evidence that there is a difference between the internationally accepted definition of torture and that used in the United States. That also came out in the debates in the American Senate when Vice-President Cheney sought to persuade American senators that they should not vote for the McCain amendment. What some Americans authorities think of not as torture, but acceptable force, would fall within normal international definitions of torture. I refer to such practices as water boarding, which to my astonishment has been defended in some very reputable American newspapers, on the grounds that, "If our troops are trained to resist these practices, we can use them against anyone".

The whole idea of extraordinary rendition and the use of torture is appalling. Any association with it is damaging to this country. This country has been damaged by what has happened in Abu Ghraib and in Guantanamo. All these things have rolled into the issues that have arisen in the Iraq war. That is why it
 
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is important, for our own reputation and because it is right, that the Government should act positively and proactively to find out what is happening.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in another debate on this issue which exercises us all greatly. The one jarring note to which I should like to respond is the suggestion of the noble Lord, Lord Garden, that the Government's arguments have changed during the course of proceedings on the Bill. They changed on one occasion. When the amendment was first tabled knowledge of the issue was very limited. My department, the Department of Transport, has limited responsibility for these issues and we gave the best reply we could to an amendment which was tabled the night before and to which I responded that afternoon. I subsequently indicated that the issue was different from the basis on which we were anxious about the matter. That is the only change in the Government's position. I freely admitted that on Report. I want to emphasise that the Government are not changing their arguments again this evening but are seeking and maintaining total consistency in our position.

Of course we all recognise that the concept of extraordinary rendition is unacceptable. I want to emphasise that although I recognise the various cases used today to illustrate the case that rendition may be occurring—it is for the House to judge that of course—none of them involves the United Kingdom directly. We made our position absolutely clear in ministerial Statements and in answers to Parliamentary Questions. Since this Government came to power, they have authorised the use of UK facilities for two prisoner transfers to the United States where the prisoners were subsequently tried and we declined to facilitate two other transfers.

It has been widely reported that specific US-registered aircraft, allegedly linked to the CIA—and of course these issues arose again this evening—have used UK facilities for renditions. There is no compelling evidence to suggest that those aircraft were linked to unlawful activity while in or over flying the United Kingdom. If credible intelligence of serious illegal activity—the definition of "extraordinary rendition" that has informed this debate would be serious illegal activity—comes to light regarding an aircraft in flight, the Government can require the aircraft to land. Article 3bis of the Chicago convention allows states to require aircraft to land if there are reasonable grounds to conclude that the aircraft is being used for any purpose that is inconsistent with the aims of the convention.

If the aircraft is on the ground, the control authorities—the police, Customs and immigration—already have a variety of powers to enter, take evidence and make arrests. For civil aircraft, the police could board an aircraft in the UK if they had reasonable suspicion that certain crimes were being committed within UK jurisdiction under UK law. My noble and learned friend Lord Archer pressed me on this point, and, with his usual diligence and accuracy, has done
 
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the researches necessary. I confirm that the police have power to enter premises to arrest for indictable and certain other offences under Section 17 of the Police and Criminal Evidence Act 1984. For this purpose, premises are defined as including any aircraft. That is in Section 23 of the Act. Because the police enjoy their usual powers of entry, the powers available would vary depending on the offence that is thought to have been committed. A justice of the peace may issue a search warrant to enter and search premises, including aircraft, where there are reasonable grounds for believing that an indictable offence has been committed.

If someone is being transported for the purpose of being tortured, those who are exporting that person are likely to be aiding and abetting the unlawful act of torture and so committing an indictable offence under Section 134 of the Criminal Justice Act 1988, so triggering the power to enter the premises that I have just described. So there is no doubt about the powers that the police enjoy to carry out necessary action on aircraft where there is reasonable suspicion of an offence being committed. If what was being committed is that which was described by noble Lords this evening, I have indicated that that would be a clear offence.

8 pm

Lord Archer of Sandwell: My Lords, does my noble friend understand that in many of the instances cited, those who export—as he put it—the individual for the purpose of being tortured are taking him to somewhere where there is a serious risk that he may be tortured? They may not be complicit in the torture; they are simply sending him somewhere to be interrogated without caring very much whether or not he is tortured.

Lord Davies of Oldham: Yes, my Lords, but it would be sufficient that they were escorting an individual to such a potential fate, if there was a reasonable suspicion that that is what was being carried out. That is the point that I am trying to emphasise.

The wider issue of the transportation by air of persons deprived of their liberty was addressed in the recent investigation and report by the secretary-general of the Council of Europe. Her Majesty's Government provided a full response to his inquiry, including information on the powers that we already have. That is available on the Council of Europe website. The secretary-general's report, issued on 1 March, acknowledged that the United Kingdom had provided full answers to all the questions put. The secretary-general plans to make proposals, including a review of the current international legal framework for air traffic and the adequacy of safeguards, to ensure that aircraft are not used for purposes incompatible with internationally recognised human rights standards.

Since Report, we have also had the opinion of the Venice Commission, the European commission for Democracy through Law, which was requested by the Committee on Legal Affairs and Human Rights of the
 
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Parliamentary Assembly of the Council of Europe. That opinion describes in some detail the general principles of civil aviation relevant to the allegations of rendition. No doubt, that will inform the further work of the Council of Europe. Of course, the UK will work closely with the Council of Europe on its proposed review. As we are here dealing with international law, the House will recognise that any change will be more appropriately made on a multilateral basis. We therefore prefer to wait for the proposals promised by the secretary-general and, if it appears that any changes to current arrangements are needed, to consider them in the appropriate international fora.

I turn to the question of our ability to implement the new clause. I understand that this is a highly emotional topic. It is very important and I recognise the strength of feeling that enthuses all those who have spoken in this debate. But this is an amendment to this Bill. Therefore, I emphasise that it is important that we consider what the new clause would mean in the Bill in the real world. The simple practicalities of forcing a plane to land make the clause all but symbolic. A typical scenario for a jet aircraft might be that it was in United Kingdom airspace for up to two hours. If intelligence came to light indicating unlawful activity on that aircraft, it is unlikely that the intelligence services would be able to assess the quality of that intelligence for reliability and recommend action in such a short period.

When the noble Baroness, Lady D'Souza, moved her amendment on Report, she said that an aircraft should be made to land even if it was "slightly suspected" that an unlawful rendition was taking place. As I said then, forcing an aircraft to land in British airspace is an act of such drama and difficulty that we would need a much higher threshold than that. To warrant such a dramatic intervention—to require an aircraft to land under some compulsion of force—would be a very serious act by this or any government. We would be liable to pay compensation if an error had been made and an aircraft had been forced down unjustifiably.

I reiterate the Government's position on the allegations that have prompted the new clause, just for clarification. The noble Lord, Lord Lamont, who participated in our debate for the first time, also emphasised those allegations, and I shall respond to him. I am somewhat dismissive of the scenario outlined by the noble Lord, Lord Campbell of Alloway. This is not an area in which conjecture will do as the basis for our debate.

The reality is this. We have made clear to the United States authorities, including in recent months, that, first, we expect them to seek permission to render detainees via UK territory and airspace, including any overseas territories. Secondly, we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. Thirdly—this is a point on which the noble Lord, Lord Lamont, pressed me—we have emphasised to the United States how we, the British Government, understand our obligations under the United Nations convention against torture and the European
 
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Convention on Human Rights. In turn, we are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.

I recognise the opportunities that have been taken in this somewhat humble Bill to discuss such a significant matter. The opportunity has been seized by the noble Baroness, Lady D'Souza, and those who supported her, to air an issue about which we are all very concerned. It has disturbed Her Majesty's Government greatly during the past two months and rendered those of us speaking on their behalf just before Christmas in a very difficult position on something about which the Government knew very little at the time and was clearly having to carry out significant research. That is why answers to Parliamentary Questions and Statements have been delayed—not through any attempt at obstruction but simply because the research had to be conducted on an issue on which, it will be recognised, is not part and parcel of the normal operation of government and certainly not part and parcel of the normal operation of the humble Ministry for Transport.

To conclude, however well intentioned, the clause would serve no practical purpose, as the necessary powers to require an aircraft to land and then to enter and search it to ascertain whether a crime had been committed already exist in our national law. Any changes to international law that may be identified as desirable—I have mentioned that discussions about that continue—would certainly be best dealt with through the appropriate international fora.

We have had an important debate. I hope it will be recognised that I have responded to the issues that have been raised as fully and clearly as I can, although I have no doubt that many of them go far beyond the responsibilities of the department. I also hope it will be recognised that the new clause would not add to the Bill any powers that we do not already enjoy to deal with extraordinary rendition, which Members on both sides of the House regard as abhorrent.


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