Paul
Holmes: I beg to move, That the clause be read a Second
time. The
new clause would amend the Aviation Security Act 1982. It would
introduce new powers to direct a plane crossing British airspace to
land and be searched if it is suspected of involvement in unlawful
rendition. Proposals on this issue were tabled to the Civil Aviation
Bill and the Police and Justice Bill in 2006, but were unsuccessful.
Given the acknowledgment since that time that planes transporting
prisoners to countries where they faced torture and inhuman and
degrading treatment have come within the UK’s jurisdiction, it
is appropriate to look at the matter again. Given that we debated the
1982 Act in earlier sittings, this Bill seemed to be the relevant place
to raise the matter
again. The
new clause would require the Secretary of State to take this action if
he or she thought that people were being unlawfully rendered in planes
that cross British airspace. There is the side issue of planes that
land to refuel on British territory, whether in this country or
airbases like Diego Garcia. That discussion has been rehearsed on other
occasions. It is unnecessary to go into the allegations that have been
made or the admissions that this has happened in UK territory and
airspace. The Government confirmed that our base on Diego Garcia had
been used at least twice for flights involved in extraordinary
rendition. We are not trying to reopen the argument about what has
happened in the
past. Given
the admissions that have been made, a line must be drawn and
legislation should be amended so that the UK can take action to carry
out its obligations under human rights legislation, international law
and as a signatory to conventions on the use of torture. We should not
by passive acquiescence be seen to condone such activity or to allow it
to take place in areas under our
jurisdiction. The
new clause is self-explanatory, so I leave it to others to
respond.
James
Brokenshire: I do not want to detain the Committee in
relation to this new clause. Serious questions have been raised over
the Government’s involvement in extraordinary rendition. What
activities may or may not have taken place must be considered further.
The underlying issue is that information must be provided and
assurances over future conduct given. More than anything, the new
clause is intended to promote and provoke debate and consideration of
these important issues. It also seeks to ensure that this country
complies with international conventions and human rights
legislation. Given
the hour and the time left to the Committee, I do not wish to embark
upon a full-scale debate on extraordinary rendition. That would not be
appropriate in the circumstances. However, we will continue to press
the Government on this issue and to raise questions. I will listen with
interest to the Minister’s
response.
The
Parliamentary Under-Secretary of State for Transport (Jim
Fitzpatrick): It is a pleasure to see you in the Chair
this afternoon, Mr. Bayley. This issue was debated at length
on a number of occasions when similar amendments were tabled on Report
to both the Civil Aviation and the Police and Justice Bills in 2006, as
the hon. Member for Chesterfield
said. The
main thrust of the new clause is to give the Secretary of State a
specific power to direct an aircraft overflying the UK to land and be
searched if it is believed that it is involved in an act of unlawful
rendition. However, the Chicago convention on international civil
aviation already allows a state to require a civil aircraft to land if
there are reasonable grounds to conclude that it is being used for any
purpose inconsistent with the aims of that convention. I therefore
suggest to the hon. Gentleman that the new clause is
unnecessary.
As the hon.
Member for Hornchurch suggested, I do not intend to go into the whole
debate on extraordinary rendition, but I have to respond to the
suggestions in the new clause. Before commenting in more detail, it
might help if I briefly explain the current requirements regarding
permission for foreign aircraft to land at UK airports and enter UK
airspace. Aircraft registered outside the EU and the European economic
area require the prior permission of the Secretary of State for
Transport to operate commercial flights into the UK. A shorthand
definition of a commercial flight is that fee-paying passengers or
cargo are being picked up or dropped off. That definition applies
equally to scheduled and charter flights. The obligation for operators
of international commercial aircraft to seek permission to land is set
out in articles 5 and 6 of the Chicago convention and reflected in UK
legislation in article 138 of the Air Navigation Order 2005.
The Chicago
convention also provides that flights operated on a private basis, that
is flights for which payment has not been made to the operator for the
carriage of passengers or cargo, may overfly contracting states and
stop in them to refuel, or for other technical reasons, without prior
permission. Again, that is in article 5 of the
convention. State
aircraft—those used in military, customs and police
services—are required by article 3 of the convention to acquire
the authorisation of the foreign state to overfly or land. In the UK,
that is a matter for either the Secretary of State for Defence or the
Foreign Secretary. The procedures required for the authorisation of
state aircraft entering UK airspace or landing on UK territory are set
out in the diplomatic flight clearance procedure, which is derived from
article 3 of the convention. Clearance under those procedures does not
provide any immunity against breaches of national or international law
or regulations, or authorise the aircraft, its crew or passengers to
act in such a way that leads the UK to breach its international
obligations. The
right to fly over UK airspace without landing is given to scheduled
international air services by article 1 of the international air
services transit agreement—a sister agreement to the Chicago
convention—and prior permission is therefore not required. A
right of overflight for non-scheduled air services is granted by
article 5 of the Chicago convention, but is subject to the overflown
state’s right to require the aircraft to
land. The
proposed new clause seeks to introduce an amendment to the Aviation
Security Act 1982 that would provide the Secretary of State with a
specific power to direct an aircraft in UK airspace to land. Further,
it would provide a power to search that aircraft or any other aircraft
already in the UK when there was any reason to believe that incorrect
information had been given under section 32 or 33 of the Immigration,
Asylum and Nationality Act 2006, or that the aircraft in question was,
had been, or might in the future be, involved in acts of unlawful
rendition. One
of the practical problems with the new clause is that it does not
specify the level of suspicion required to trigger a direction from the
Secretary of State that an aircraft must land. That could mean that any
allegation, whether or not supported by credible evidence, would be
sufficient to allow the Secretary of State to issue such a direction.
While I recognise that the purpose of the amendment is to address a
very serious issue and that
there are difficulties in establishing evidence that an unlawful
rendition is taking place in sufficient time to act upon it, directing
an aircraft to land is a significant step and accordingly any such
direction should be based at least upon a reasonable suspicion of
wrongdoing. A
further practical problem with the new clause is that it would allow
the entry and search of any aircraft that there is reason to believe
has been or may be used for unlawful rendition. Allegations of past
misdeeds, whether proven or not, are no evidence that acts of unlawful
rendition are taking place on a current flight. Further, all aircraft
have the potential to be used for unlawful rendition and, taken
literally, the new clause would require every aircraft landing in the
UK to be searched. I certainly do not think that is the intention of
the hon.
Gentleman.
Paul
Holmes: Obviously, we are talking about the discretion of
the Secretary of State, who would not apply it to every plane that flew
over. So far the Minister has confined his comments to civil aircraft
and argued that existing legislation covers that. These provisions
would apply to the military as
well.
Jim
Fitzpatrick: I am happy that the hon. Gentleman has raised
that point, as I am just coming to it.
The new clause
provides no discretion when it comes to the entry and search of an
aircraft directed to land or already on the ground in the UK if there
is any reason to suspect past, present or future involvement in
unlawful rendition. Once such a reason had been established, there
would be an obligation on responsible persons to search the aircraft
every time it landed in the UK in future, regardless of any change of
ownership, unless or until it had been established that the aircraft
was not, nor had ever been, involved in such operations. In the absence
of any distinction being drawn between state and non-state aircraft,
that has the potential to raise particular difficulties, especially
regarding military aircraft of the armed forces of visiting
states. Crucially,
however, as I mentioned earlier, the new clause is unnecessary as
article 3bis of the Chicago convention already allows a state to
require civil aircraft to land if there are reasonable grounds to
conclude that it is being used for any purpose inconsistent with the
aims of the convention. An act of unlawful rendition may well fall
within such a definition. We would nevertheless need to be very sure of
our intelligence before taking such a step. Furthermore, the police
have the power to search premises, including an aircraft, under
warrant. Applications for a warrant are made under section 8 of the
Police and Criminal Evidence Act. A search warrant will be granted
where a justice of the peace is satisfied that there are reasonable
grounds for believing that an indictable offence has been committed,
that there is relevant, admissible evidence on the premises and that
one of the conditions in section 8(3) is satisfied. We believe that
these powers could be used in a case in which an aircraft had been
required to land under the Chicago convention, but there would have to
be sufficient information to satisfy the court that there were
reasonable grounds for suspecting an indictable offence had been
committed.
As can be seen,
sufficient powers are already in place under existing legislation to
take action of the sort envisaged by this new clause, based on
reasonable suspicion. This view is supported by the Intelligence and
Security Committee’s report into rendition, which
stated: “We
are satisfied that, where there is sufficient evidence of unlawful
activity on board an aircraft in UK airspace, be it a rendition
operation or otherwise, this would be investigated by the UK
authorities.”
While we will
continue to keep these powers under review, the proposed new clause is
simply unnecessary. I therefore call on the hon. Member for
Chesterfield not to press his new
clause.
Paul
Holmes: A number of issues arise following what the
Minister has said. The suggestion is that the legislation adequately
covers civil aircraft, but there are doubts about parts of it. The
Terrorism Act 2002, for example, gives
“police,
immigration and HM Customs and Excise the power to serve on the owner
or ‘agents’ of an aircraft arriving in the UK a notice
requiring details of the crew and passengers, but this is limited to
cases involving
terrorism.” That
is limited to terrorism. There are other possible ramifications which
might not be covered by that provision, so the legislation is not
all-embracing. It applies only to civil aircraft. Unless I missed it,
the Minister did not go on to talk about military aspects. What is new
since the attempts to amend previous legislation in 2006 is that we
have had quite a humiliating climbdown by the Foreign Secretary, who
has twice had to admit that he unwittingly misled the House because he
had taken on good faith what the US Government had told
him.
Jim
Fitzpatrick: I did say state aircraft, and obviously that
covers military as opposed to civilian aircraft, which formed the main
content of my
remarks.
Paul
Holmes: I thank the
Minister.
Mr.
Ruffley: Is it the hon. Gentleman’s guess that
“military” might include the
CIA? Paul
Holmes: If it is state aircraft it would embrace
everything—civil, military, specialist CIA flights. We all know
the old example of the famous Air America flights that operated in
south-east Asia in the Vietnam, Cambodia and Laos wars, so the
definition covers the whole
range. 4
pm Debate
interrupted (Programme Order, 27 January and 24
February). The
Chairman put forthwith the Question already proposed from the Chair
(Standing Order No. 83D), That the clause be read a Second
time. Question
accordingly
negatived. The
Chairman then put forthwith the Questions necessary for the disposal of
the business to be concluded at that time (Standing Order No.
83D).
New Schedule
2‘Injunctions:
Powers to
Remand Introductory 1
(1) The provisions of this Schedule apply where the court has power to
remand a person under section [Arrest without warrant](5) or [Issue
of warrant of
arrest](4). (2) In this
Schedule, “the court” means the High Court or a county
court and includes— (a)
in relation to the High Court, a judge of that court,
and (b) in relation to a county
court, a judge or district judge of that
court. Remand in custody or
on bail 2 (1) The court
may— (a) remand the
person in custody, that is, commit the person to custody to be brought
before the court at the end of the period of remand or at such earlier
time as the court may require,
or (b) remand the person on
bail. (2) The court may remand
the person on bail— (a)
by taking from the person a recognizance, with or without sureties,
conditioned as provided in paragraph 3,
or (b) by fixing the amount of
the recognizances with a view to their being taken subsequently and, in
the meantime, committing the person to custody as mentioned in
sub-paragraph (1)(a). (3) Where
a person is brought before the court after remand, the court may
further remand the person. 3
(1) Where a person is remanded on bail, the court may direct that the
person’s recognizance be conditioned for the person’s
appearance— (a) before
that court at the end of the period of remand,
or (b) at every time and place
to which during the course of the proceedings the hearing may from time
to time be adjourned. (2) Where
a recognizance is conditioned for a person's appearance as mentioned in
sub-paragraph (1)(b), the fixing of any time for the person next to
appear is to be treated as a
remand. (3) Nothing in this
paragraph affects the power of the court at any subsequent hearing to
remand the person afresh. 4 (1)
The court may not remand a person for a period exceeding 8 clear days
unless— (a) the person
is remanded on bail, and (b)
both that person and the person who applied for the injunction consent
to a longer period. (2) Where
the court has power to remand a person in custody it may, if the remand
is for a period not exceeding 3 clear days, commit the person to the
custody of a
constable. Further
remand 5 (1) If the court
is satisfied that a person who has been remanded is unable by reason of
illness or accident to appear or be brought before the court at the
expiration of the period of remand, the court may, in the absence of
the person, further remand the
person. (2) The power mentioned
in sub-paragraph (1) may, in the case of a person who was remanded on
bail, be exercised by enlarging the person’s recognizance and
those of any sureties for the person to a later
time. (3) Where a person
remanded on bail is bound to appear before the court at any time and
the court has no power to remand the person under sub-paragraph (1),
the court may (in the person’s absence) enlarge the
person’s recognizance and those of any sureties for the person
to a later time.
(4) The enlargement of the person’s
recognizance is to be treated as a further
remand. (5) Paragraph 4(1)
(limit of remand) does not apply to the exercise of the powers
conferred by this
paragraph. Postponement of
taking recognizance 6 Where
under paragraph 2(2)(b) the court fixes the amount in which the
principal and the sureties, if any, are to be bound, the recognizance
may afterwards be taken by such person as may be prescribed by rules of
court, with the same consequences as if it had been entered into before
the court. Requirements
imposed on remand on bail 7
The court may when remanding a person on bail under this Schedule
require the person to comply, before release on bail or later, with
such requirements as appear to the court to be necessary to secure that
the person does not interfere with witnesses or otherwise obstruct the
course of justice.’.—(Mr.
Coaker.) Brought
up, and added to the
Bill.
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