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Extraordinary Rendition

8.42 pm

Lord Campbell of Alloway rose to ask Her Majesty’s Government what arrangements have been made to enable the refuelling at military airfields of civilian aircraft with passengers destined for extraordinary rendition.

The noble Lord said: My Lords, at the outset I thank all noble Lords who have waited to speak on this Question. It is an emotive subject that requires objective examination. In particular, I wish to thank the noble Baroness, Lady D’Souza, but for whose courageous initiative the Question would not have been tabled, and the noble Lord, Lord Triesman, who has other pressing duties, for taking the Question at this time.

As there is a well grounded concern and a high level of suspicion that these arrangements are used for extraordinary rendition, resort is had to the advisory role of your Lordships’ House to seek to persuade that some measures of safeguard be taken as are to be proposed. If they should commend themselves to your Lordships, the hope is that they should also commend themselves to Government.

This is an exercise of persuasion, not of confrontation with Government. I speak at no one’s behest, and declare an interest as a member of the Joint Committee on Human Rights, which was informed that the Foreign Secretary was not aware of the purpose of these arrangements. That, of course, is accepted as an assurance on the part of Government.

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Why were the Government not informed of the purpose? Could it be that these arrangements were the offspring of a private arrangement—a compact—to seal the purpose that Government made in the wake of the 9/11 disaster? Was that compact to be denied at all costs, never to be disclosed, perhaps the hidden key to open the gateway to the explicable, if this was also classified for non-disclosure by the CIA? Such assumptions can be made only if there is no other explanation. As yet, there is none.

I turn to the proposed safeguard measures—first to withdraw clearance for the landing of these flights for transfer under these arrangements and then to set up an investigation that protects terrorism intelligence and sources, perhaps under the aegis of the noble Lord, Lord Newton, or the noble Lord, Lord Carlile of Berriew. I am afraid it would appear that the United States would not attend any such investigation.

The essence of the findings of the report by Amnesty International on 4 April and 14 July is that civil aircraft on charter to the CIA, with people on board selected for transfer by the CIA to a series of highly suspect destinations, are permitted to land and refuel at our civil and military airfields in the United Kingdom under these arrangements for the purpose of extraordinary rendition. The voting list on an amendment to the Civil Aviation Bill tabled by the noble Baroness,Lady D’Souza—I am delighted to see the noble Lord, Lord Davies of Oldham, in his place, because he had charge of the debate on that occasion and very generously conceded that it was for the House to decide these matters—reflects the cross-party support of 58 noble Lords, who made the compelling assumption that these aircraft were used for extraordinary rendition, even though the amendment was defective. The noble Lord said it was, which I accept for other reasons—the evil not being in the state of the law sought to be enforced. This was revisited during consideration of the Police and Justice Bill.

The evidence of Lieutenant General Brims to the Joint Committee on Human Rights in open session appeared to accept that planes landed here with people aboard for transport, but that there was no evidence at all that the purpose was for extradition under these arrangements. In an agreed transcript of other evidence from 27 March, it was stated that the Foreign Secretary had made it plain that there is no,

May I respectfully ask one or two questions of the Minister, a veritable master of explaining the inexplicable? I am not certain that it will be possible for the Minister to answer. Why was clearance given to some of these planes to land at military airfields in the UK? I am delighted to see a Minister from the Department for Transport in his place, because the object is to close clearance for these planes and that lies within the aegis of the noble Lord. Is it accepted that the Department for Transport instructed the CAA to give clearance for aircraft identified as on charter to the CIA to land at civil and military airfields in the UK? Did the Foreign and Commonwealth Office so instruct the Department for Transport and, if not, at whose behest were such

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instructions given? Why were such instructions given without knowledge of the purpose of the arrangements? Was any attempt made over five years to discover the purpose of 185 flights?

8.53 pm

Lord Archer of Sandwell: My Lords, I offer my congratulations to the noble Lord, Lord Campbell, on securing this important debate and on his patience tonight in waiting for the starting signal.

I confess that I was puzzled by the wording of his Question, since I hope that no such arrangements as he describes have been made, but he has now resolved my puzzlement. As the noble Lord said, this is part of an ongoing series of debates, beginning with the Civil Aviation Bill, proceeding in Committee with the Police and Justice Bill and no doubt continuing into the future. Our time today does not permit an exhaustive argument. The noble Lord opened the case with his customary clarity. In any event, it would serve no purpose for me to repeat what has been said on previous occasions. However, the noble Lord has afforded an opportunity to examine one issue that has arisen repeatedly.

The Government have not sought to deny that the airspace and airport facilities of some European states have been used or, rather, abused to render prisoners in the custody of the CIA to countries where they were at risk of torture. The evidence is overwhelming, as the noble Lord, Lord Campbell, has explained. I am sure that the Government would not be privy to any such practice in this country, but the question is whether they are in a position to know what is happening. The Government say that no special legislation is necessary here, because there is already power for the police to enter and search aircraft using United Kingdom airport facilities.

On 4 July, in the debate in Committee on the Police and Justice Bill, my noble friend Lady Scotland sought to argue that case. I apologise at once to my noble friend Lord Triesman for springing this on him—I had not appreciated that he would be responding to the debate and I do not expect an answer to some of my questions this evening. My noble friend Lady Scotland mentioned Sections 8, 17 and 23 of the Police and Criminal Evidence Act. Section 23 simply states that the word “premises” in the Act includes aircraft. Section 8 provides that a justice may authorise a search if there has been a serious arrestable offence and thereis likely to be relevant material on the premises.Section 17 authorises a constable to enter premises for a number of purposes, the principal one being to make an arrest. My noble friend also mentioned Part III of the Aviation Security Act. As I read it, that does not add any new powers to those that the police already have.

My noble friend accused me of not having identified a gap in the existing powers. I can identify a substantial gap. If there is reason to believe that someone has been lawfully arrested in the jurisdiction in which he was taken aboard the aircraft but it is now planned to take him to a destination where he is likely to be tortured, I am not clear under which of the provisions mentioned by my noble friend power is

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granted to the authorities to search the aircraft. It may be that the noble Lord, Lord Kingsland, has given some thought to this matter and can perhaps assist.

My noble friend Lady Scotland was kind enough to respond to my suggestion that we could analyse this matter in a private meeting. It is no one’s fault that that has not taken place. However, perhaps in his reply my noble friend can at least assure us that if the Government are persuaded in due course that there is a question about the existence of adequate powers, he will press the Government to seize an early opportunity to rectify the matter by way of legislation; and I realise that it does not lie entirely in his gift. It would be tragic if we permitted someone to be subjected to torture by an oversight.

8.57 pm

Baroness Ludford: My Lords, I, too, thank the noble Lord, Lord Campbell of Alloway, for introducing this debate on a particular aspect of extraordinary rendition. My interest is that I am the vice-chair of the European Parliament’s temporary committee on extraordinary rendition.

First, like all EU and Council of Europe states, the UK is under an international legal obligation to ensure that everyone within its jurisdiction enjoys internationally agreed fundamental rights, including protection from arbitrary detention and torture. That obligation may be violated by acquiescence or connivance in the conduct of foreign agents. Therefore, there exists a positive duty to investigate substantiated claims of breaches of fundamental rights. Those claims have been substantiated by a great volume of credible testimony from victims, by flight records and through judicial and parliamentary as well as journalistic inquiries.

Secondly, Council of Europe member states are bound by various multilateral and bilateral agreements, such as defence, international civil aviation and military bases agreements, but the obligations arising from those treaties do not prevent states from complying with their human rights obligations, and those treaties must be interpreted and applied in a manner consistent with human rights obligations.

Civil aircraft are entitled to transit or land in the territory of a state that is a party to the Chicago Convention without obtaining prior permission. However, that state can search the plane or inspect certificates or other documents, such as a passenger list. The fear is that extraordinary rendition planes—that is, private jets leased by the CIA—have sought to have it both ways; they have pretended to be civil aircraft so as to escape the need for authorisation but they have sought to enjoy the immunity from search and inspection that state planes have. Amazingly, it seems as though some European Governments may have allowed them that special double indemnity. Our own Government may have turned a blind eye.

In response to the report from the Foreign Affairs Select Committee in the other place, the Government said that they “expected” the United States to seek permission to render detainees via UK territory or airspace—a curious term. One would expect an insistence or a requirement to seek permission.

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Of course, in the leaked Foreign Office memo of last December, it was admitted that the Government did not know how often the US had sought permission for rendition flights. What checks have the Government made of Ministry of Defence records of civil flights that land at military airfields? The Government have now acknowledged that the Chicago Convention allows searches and requirements to land, but they refuse to lift a finger, even though there are protocol allegations, to investigate this properly.

International instruments against torture require states to assert jurisdiction over torture offences committed in their territories. If states facilitate transfer of an individual to a state where he is at risk of torture, they could be liable for complicity. Such assistance can consist of allowing refuelling or granting overflight or landing rights. In circumstances of overwhelming prima facie evidence, which I suggest exists, of extraordinary rendition having taken place in and through UK and other EU states, even if that evidence is not of a criminal standard of proof, it is incumbent on the UK authorities to stop being passive or turning a blind eye and to start living up to the European and international legal and human rights obligations that British lawyers contributed so much to drafting.

The UK must put itself in a position where it can ensure that it complies with the legal obligation to investigate torture and other breach of human rights allegations. I suggest that the Government’s response to the Foreign Affairs Select Committee in the other place is inadequate. The Government said:

There is enough evidence, as the Joint Committee on Human Rights said. I hope that the Government will tell us that they are now going to carry out a proactive investigation. It is not enough to be passive or to be wilfully ignorant. I suggest that that would betray this country’s reputation for upholding human rights obligations.

9.02 pm

Baroness D'Souza: My Lords, I, too, thank the noble Lord, Lord Campbell of Alloway, for his kind words. I congratulate him on securing this debate and on persisting in trying to deal with this difficult and unacceptable business of extraordinary rendition. This is not an issue that suffers from a lack of concerned attention. To date there have been at least four major reports, including those from the joint All-Party Parliamentary Human Rights Group, the Foreign Affairs Select Committee, the Venice Commission and the Council of Europe. There are detailed briefings from Amnesty International, Human Rights Watch, Liberty and the International Bar Association, among other human rights organisations. There is the All-Party Parliamentary Group on Extraordinary Rendition and there is comprehensive documentation of all the evidence to date from the House of Commons Library. There are at least two ongoing journalist investigations, and questions in both Houses of Parliament and several debates have taken place in the past year. A case is being brought in the US courts by the American Civil

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Liberties Union. An amendment to institute a mechanism to ensure that in the future any suspicion is immediately acted on was, as has been said, put forward in the context of the Civil Aviation Bill and is currently in the Police and Justice Bill. Therefore, the topic is well researched and the ground has been well covered in this House.

All these reports, questions, debates and briefings suggest that the UK and other European countries are guilty of a degree of involvement in extraordinary rendition of foreign nationals suspected of terrorist activity. However, the issue that emerges is the large amount of circumstantial evidence pitted against the Government’s repeated assertions that the UK has not and would never condone the practice of extraordinary rendition. Those assertions of course are extremely welcome.

But is that enough to deter other countries from using UK facilities—military or otherwise—to further their own methods of pursuing suspected terrorists? As has already been said, logically, the possibilities are that, first, whatever happens in other parts of the world, extraordinary rendition has not in any way involved the UK either in the use of facilities, top-level agreements or the intelligence services because of a comprehensive and stringent refusal on the part of the Government to be instrumental in it; secondly, UK facilities and perhaps the intelligence services have been involved without the direct knowledge of the Government; and, thirdly, the Government are aware that extraordinary rendition has on occasion taken place using UK facilities and intelligence services, but there is no, nor is there likely to be, direct evidence.

At present the first possibility is the one that is put forward by the Government. But that is increasingly difficult to maintain due to more evidence emerging and the admission by senior judicial personnel that many European countries have been guilty of allowing territory to be used for extraordinary rendition. The European Union Justice Commissioner, for example, is calling on Governments to make clear their role in extraordinary rendition. The Swiss senator Mr Dick Marty asserts that collaboration with the CIA is proven. The Council of Europe Secretary-General feels that blanket denials of involvement do not constitute an adequate response and he calls for official investigations.

If the second possibility has any validity, the intelligence and airport services are operating outside the law, which would constitute culpable ignorance on the part of the Government. The third possibility is of course an extremely depressing one and not at the moment a road down which thankfully any of us have to go.

However, I have to repeat the question: is it enough for the Government to assert their adherence to the UN Convention Against Torture? I suggest not. There is a strong suspicion of wrongdoing and the Government could easily damp down those suspicions with actions designed to prevent any future possibility of involvement in extraordinary rendition, which would at the same time reassure the public of the UK Government’s legal and moral commitments.

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9.06 pm

The Earl of Northesk: My Lords, like other noble Lords I congratulate my noble friend on securing this important debate. In so far as it may be of relevant interest, I remind the House that I am a green card holder and therefore sometime resident in the United States. Given that my life straddles both sides of the Atlantic, I begin by stating my firm support for the fight against terrorism. But I am equally convinced that—and despite this being a statement of the obvious, I do not believe that it can be said often enough—we diminish and demean the virtue of that fight if, however marginally, we resort to the tools and tactics of the terrorist.

As to my noble friend’s Question today, I make no claim for any particular expertise in relation to extraordinary rendition. Like most of us, I merely rely on the odd news reports that have appeared in the media. Rather, I come to the issue in my capacity as a delegate to the Parliamentary Assembly of the OSCE. As it happens, our annual plenary session took place in Brussels the week before last and, as the Minister will no doubt be aware, the resulting declaration contains a number of resolutions adopted by the assembly. One in particular, entitled “Strengthening effective parliamentary oversight of security and intelligence agencies”, has special relevance to today’s debate.

After due consideration by the full assembly rather than just in committee, that resolution was amended by the addition of a number of new paragraphs. Two of those are of concern. The first,

The second chimes with the numerous requests that other noble Lords have made tonight. It again,

I make no judgment as to whether those represent an accurate reflection of current Foreign Office and/or government policy. That said, it is worth pointing out that perhaps not surprisingly only the US delegation was opposed to the insertion of the two new paragraphs and in fact all members of the UK delegation, irrespective of their political allegiance, voted for them. Indeed, tacit Foreign Office acceptance of the substance of the paragraphs could perhaps be inferred on the basis that the FCO officials present did not seek to make us aware of any potential policy conflicts that acceptance of the amendments may have contained.

That therefore begs an inevitable question. So far as I am aware, the Government have consistently refused to contemplate any inquiry into extraordinary rendition in the UK. As the Prime Minister put it in December last year:

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Perhaps the best that can be said about that statement is that at least the line is consistent. And yet, in this context, the text of the resolution is unequivocal in two important respects. It requires that all participating states ensure that their territory and facilities are not used to assist rendition flights and that all participating states investigate promptly and thoroughly allegations—that last is an extremely important word—that their territory has been used to assist CIA-chartered flights.

At its simplest, therefore, can the Minister confirm that the Government as representatives of an OSCE member will take the necessary action to deliver on the terms of the resolution? Will the Government, in so far as it is necessary so to do, ban access of rendition flights to UK airports and airspace, and will they issue an urgent and thorough inquiry into the matter?

9.10 pm

Lady Saltoun of Abernethy: My Lords, I am speaking entirely on my own account, although I am a member of the All-Party Parliamentary Group on Extraordinary Rendition, whence I have got my information.

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