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How can anyone be reassured that there is no risk of torture? These statements on their own, however accurate, actually imply the contrary. They show that there is enough uncertainty about the UK’s moral position to require a more open debate based on better analysis and detailed enumeration of the facts. It is helpful that the Government are now considering their reply to the reminder of the Joint Committee on Human Rights of the UK’s obligations under the UN Convention Against Torture, but the Foreign Affairs Select Committee has been asking these questions for months and is always told that intelligence has all the information. Surely this is no way to conduct business in a fully functioning democracy.

9.18 pm

Lord Garden: My Lords, I spoke in support of the amendment moved by the noble Baroness, Lady D’Souza, to the Civil Aviation Bill on 8 March. I raised my concerns about the role the British military might be being expected to play in connection with rendition flights, and I am grateful to the noble Lord, Lord Campbell of Alloway, for focusing on the military airfields in his Question tonight.

The Government have confirmed that RAF Brize Norton and RAF Northolt have provided services to some 14 CIA aircraft movements. I remind your Lordships of the special nature of RAF Northolt. It is used for VIP flights, Royal flights and ministerial flights. It has limitations on the numbers of movements and heightened security because of the nature of the passengers who use it. RAF Brize Norton is also an important transport base where security is key.

It is some 20 years since I was a station commander of an operational Royal Air Force airfield, but I would be surprised if the procedures for accepting visiting aircraft have changed much since that time. As station commander, I would learn of the expected movements for the following 24 hours at the early morning daily briefing. The station commanders of RAF Northolt and RAF Brize Norton will know when these flights happen; they will know where they have come from and they will know where they are going to. The operations wing staff will have checked whether it is appropriate to give clearance for landing and refuelling, which will perhaps require reference upwards to group or command headquarters or to the Ministry of Defence. These are international flights, which means that Customs needs to be informed. In sum, it is not possible for the Government to say that such flights are just part of the routine facilities provided between friendly nations.

My concern is that military officers might be put in the position of assisting an illegal flight and subsequently be liable to prosecution as a result. That

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might, in the past, have sounded somewhat fanciful, but two other developments seem relevant. In Iraq, we see military personnel being held to account if it is thought that they might have broken international law. In Italy, two Italian intelligence officers have been arrested over allegations that they assisted in the rendition of Osama Mustafa Hassan to Egypt in 2003. Putting the two elements together, I worry how long it will be before we see a Royal Air Force station commander being investigated for providing facilities for CIA rendition flights.

Can the Minister tell us whether he would support an instruction from the Ministry of Defence calling for all international flights by foreign aircraft that land at military airfields to be inspected to ensure that their passenger manifests are accurate and that there is no suspicion of illegal activity? Perhaps the best way forward on this is through the Committee on the Armed Forces Bill. We have tried it with the Civil Aviation Bill and with the Police and Justice Bill; perhaps we can deal with the military airfields question through the Armed Forces Bill. Would the Minister recommend that?

9.22 pm

Lord Kingsland: My Lords, I, too, congratulate my noble friend Lord Campbell of Alloway on initiating this debate in your Lordships’ House.

As your Lordships are well aware, by virtue of Article 3 of the United Nations Convention Against Torture and Article 3 of the European Convention on Human Rights, we are obliged not to return anyone, whether resident in this country or rendered through it, to another country where there is a real risk that they will be tortured.

After much confusion from the Government about the effect of international civil aviation law, the issue as to whether the Chicago Convention prevents investigations into civilian flights that are alleged to be involved in extraordinary rendition has now been settled. The Government clearly have the power to do so. The key question, therefore, is whether they are under a duty to do so.

The argument centres on what facts initiate that duty. At present, the Government accept, in principle, that they would be willing to investigate where there is evidence of extraordinary rendition flights passing through the UK; but they have repeatedly denied that there is any such evidence.

Until passenger lists of chartered civilian aircraft are provided to the UK authorities, nothing can be certain. However, the report of the Joint Committee on Human Rights, at paragraph 168, states that there is now,

The Government should explain to your Lordships tonight why they do not believe that such steps are necessary.

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Regardless of whether the Joint Committee on Human Rights is correct, the Government’s continued resistance to carrying out investigations risks undermining public confidence in their assertions that the United Kingdom will never condone, or be complicit in, activities relating to torture. The Government must be seen to be doing all they can to show that the United Kingdom is an active adherent to the rule of international law.

Reliance on assurances from the United States is not sufficient to resolve the issue. The United States has taken a far more restricted view on what it defines as torture. While it has retracted its extraordinary previous assertion that the practice has to involve excruciating and agonising pain, it is still unclear whether the view it takes of what constitutes torture would match the test applied by countries such as the United Kingdom.

Furthermore, when assessing the risk of torture, it should be borne in mind that the United States applies a more-likely-than-not standard. The United Kingdom, by contrast, applies only a real-risk standard. So the United States could argue that it is not breaking the law by sending individuals to countries where there is only a real risk—the test that we apply.

The Opposition have stated that the Government must establish beyond doubt that United Kingdom territory or airspace has not been used for extraordinary rendition, and we maintain this position. We accept the assurances of the Foreign Secretary that the United Kingdom would not facilitate the transfer of an individual from or through the United Kingdom where there are grounds to believe that that person would face a real risk of torture; but we are asking the Government to reconsider carrying out investigations into these flights.

9.26 pm

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Triesman): My Lords, I welcome the opportunity which the noble Lord, Lord Campbell of Alloway, has given us to debate these issues today and I acknowledge the work that has been done by the Joint Committee on Human Rights. I shall deal with what might be regarded in the House this evening as mundane facts—just facts. I do not want to deal with conspiracy, even if it is thought to be a more colourful approach. I have noted some of the language that has been used in the House about this country: “the probable assumption”, “the well grounded concern” and “the real suspicion”. The noble Baroness, Lady Ludford, referred twice to the fact that “we turn a blind eye”. The noble Earl, Lord Sandwich, referred to “concealing illegal practice”. Some of that language was used also in the debate on Amendment No. 6 on 28 March, when the noble Lord, Lord Campbell of Alloway, spoke, as he has more or less done tonight, of a private arrangement to conceal the purpose in which Her Majesty's Government were involved in the wake of 7/7 and which should be denied at all costs.

The allegations that I hear and the conspiracy that is hinted at, which has been followed by the media and in this House, do not appear to be grounded in any real evidence whatever. I say to the noble Lady,Lady Saltoun, that no “repugnant practice” is conducted

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by this country. I do not accept the allegation of misbehaviour by this country. I reiterate in the clearest terms that the Government have not approved, and will not approve, a policy of facilitating the transfer of individuals through the United Kingdom to places where there are substantial grounds to believe that they would face a real risk of torture—our definition of torture and not that of the United States. Accordingly, I can confirm that no arrangements have been made at military airfields—I shall return to this as I seek to all the questions that were asked—to refuel civilian aircraft with passengers allegedly “destined for extraordinary rendition”. As I said in an Answer from this Dispatch Box recently, we have not been involved in extraordinary rendition. For those reasons, I do not accept that there is a need for an investigation. I do not accept that there is any evidence. I do not accept that there is any conspiracy. The Prime Minister was right to put it in terms.

That may well not satisfy those who ask us to prove the negative—that something has not happened. But one can never prove that. That is never a proper test of any kind of evidence. It cannot be done. I say to the noble Earl, Lord Northesk, that there is in that sense nothing that can be investigated that will satisfy anybody who adheres to such a conspiracy theory. The Government have repeatedly made it clear that they have found no evidence of detainees being rendered through the United Kingdom or the overseas territories since 11 September 2001. There is no evidence of detainees being rendered through the United Kingdom or the overseas territories since 1997 where there were substantial grounds to believe that there was a risk of torture. The Government do not deport or extradite any person to another state where there are substantial grounds to believe that the person would be in danger of being subjected to torture or cruel, inhuman or degrading treatment, or where there is a real risk that the death penalty will be applied. This position reflects our obligations under UK and international law, including the European Convention on Human Rights.

Since before 11 September 2001, we have worked closely with the US to achieve our shared goal of fighting terrorism. Noble Lords have been gracious enough to say that that is important work. As part of that close co-operation, we have made it completely clear to the US authorities that we expect them to seek permission to render detainees via UK territory and airspace on every occasion, and that we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations and how we understand them under the UN Convention Against Torture and the European Convention on Human Rights. We are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.

The noble Baroness, Lady Ludford, asks why we have not, in her view, investigated adequately. We have not investigated inadequately at all. We have not let this country down; absolutely not. We have carefully researched the question of US rendition via the United Kingdom. Jack Straw set out in his Written Ministerial Statement to the House of Commons on

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20 January the results of an extensive review of all our official records back to May 1997. There were four cases in 1998 where the US requested permission to render one or more detainees—

Lord Campbell of Alloway: My Lords, I have no right of reply. I only wish to remind the Minister that it is totally conceded that the Government did not know. I have made that perfectly plain. I have given material which suggests a high level of suspicion, as recognised by certain independent authorities. My noble friend Lord Kingsland seeks an investigation on that basis. That is the issue.

Lord Triesman: My Lords, I do not accept that there is a high level of probability. Noble Lords opposite are lawyers. As it happens, I am a probabilities mathematician, and I do not accept that this is in any sense a level of probability. It is a number of assertions for which there is no evidence.

The Countess of Mar: My Lords, does the Minister accept Toyber’s dictum, that,

Lord Triesman: My Lords, I do not even understand the question.

The term “rendition” has been used loosely. Whether any particular rendition is lawful depends on the facts of each individual case. The records of the four cases I have mentioned showed that the Government granted the United States’ request in two cases, and refused it in the other two. In both cases where the request was agreed, the individuals were transferred through the United Kingdom in order to stand trial in the United States. There is no ambiguity in what happened on those occasions. Where we are requested to assist another state and our assistance would be lawful, we will decide whether or not to assist by taking the circumstances into account. We would not assist in any case if it would put us in breach of UK law or our international obligations.

I say to the noble Baroness, Lady D’Souza, that there is no intelligence involvement in this either. I have no reason to believe that any government agency has acted in a way that does not conform to those obligations. There has been no collaboration with the CIA, and no responsibility for anything that might be claimed to have happened in other countries.

I will not comment in detail on what the United States and Secretary Rice have said. Those are matters of record in this House. In response to requests for information about specific aircraft allegedly linked to the rendition operations, the Secretary of State for Transport published flight information held by or supplied to his department in respect of those aircraft. The Ministry of Defence did likewise in connection with the use of those aircraft in respect of military airfields. On military airfields, the United Kingdom has given the United States military and state aircraft clearance to overfly the United Kingdom and to land at military airfields in the United Kingdom without seeking prior permission. Where aircraft transit through

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military airfields for refuelling, for example, passengers do not leave the airfield; the airfield is required to record the registration number, the outward bound destination, the names of the pilots, the aircraft owner, but it does not record details of passengers. I think that is as true of the landings which have been referred to at Brize Norton or RAF Northolt. The noble Lord, Lord Garden, described the process and the routines involved in that and I do not believe I can add anything. I do not think there is any basis for investigating those flights either. We have clear assurances that the United States will not move people through this country or through its airspace on the basis of extraordinary rendition.

It may be of interest to the House to note that there are 3.5 million takeoffs and landings in the United Kingdom and 1.1 million of them are non-commercial flights. I say to the noble Lord, Lord Kingsland, that the provision of passenger lists on that kind of basis, without grounds for believing that something is actually happening other than unsubstantiated allegations,would be an extraordinary operation and one that Ido not believe a Government of any party would contemplate.

We have co-operated fully with the inquiries into rendition by the Council of Europe and the European Parliament, but neither Dick Marty’s report of the 7 June nor any other document should lead to the conclusions that have been drawn in this House. His report was entitled, Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states. The interim report of the EP’s temporary committee on the alleged use of European countries by the CIA for transportation and illegal detention has also been looked into. I ask noble Lords to have a look at the Foreign Affairs Select Committee’s fourth report on Foreign Policy Aspects of the War against Terrorism, published on 2 July. The all-party report concluded that although there has been speculation about complicity by this Government in unlawful rendition,

That is hardly a basis for feeling ashamed of our nation. It is neither a police state nor a secret state.

Our position on torture is absolutely clear. We unreservedly condemn the use of torture and we work hard with our international partners to eradicate this abhorrent practice. We abide by our commitments in international law in every respect. On the specific points about Benyam Mohammed al Habashi, referred to by the noble Earl, Lord Sandwich, he was interviewed once by the security services in Karachi in 2002, but the security services had no role in his capture or in his transfer to Pakistan. There is no evidence that they drew on or passed on matter to anyone and I do not believe that there is any significant or substantial evidence or probability that they did so.

Baroness Ludford: My Lords, I think the Minister said earlier that there was no evidence of any involvement at all by British intelligence agencies. Is it not the case that during the High Court case in March, concerning Bisher al-Rawi and Jamil al-Banna, the High Court

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established that the Government passed on to the United States authorities, either directly or at least indirectly, information that led to the illegal seizure and rendition to Guantanamo Bay of those two men and that on that basis the Government, while not accepting any legal requirement, accepted to make representations certainly on behalf of Bisher al-Rawi?

Lord Triesman: My Lords, I will deal with the specific matter of Mr Al-Rawi and Mr Al-Banna who came into detention in the Gambia. I confirm in explicit terms here tonight that the United Kingdom did not request the detention of either of the men in the Gambia. We played no role in their transfer to Afghanistan or Guantanamo Bay—no role.

The noble Earl, Lord Northesk, said that he was concerned—and I am concerned—that we should not diminish or demean our democracy. We do not and we will not. Our standards are high and, as I said, I do not accept that we operate some sort of clandestine police estate. That is not the United Kingdom that I know at all. The British Government are certainly committed to protecting the British people from the threat of terrorism, and who needs reminding of the scale of the threat? As we were commemorating 7/7, we saw another brutal and shameful attack; on the city of Mumbai. But we are quite clear in our own minds that we can succeed in meeting the challenge of international terrorism only if our own efforts are grounded in respect for, and the continued promotion of, international law and fundamental freedoms? That is as true in the area of rendition as in any other aspect of our counter-terrorist effort.

Measures taken by states to combat terrorism must be legal, proportionate and justifiable. Promoting human rights, democracy, good governance and the rule of law is, in the end, the best guarantee of our own security, for it helps stifle the discontent on which the terrorist recruiters prey.

I know that what I have said will not satisfy all noble Lords in the House. I am afraid that I will have to remain content in my own mind that it does not do so. In this country we do not engage in practices of the kind that have been described. It may be impossible to prove the negative, but that is no basis for people to assume that there has been the kind of behaviour that gave rise to some of the adjectives used. All noble Lords who wish to pursue this matter further should provide far more tangible evidence than the kind of allegations that we have heard. I myself have looked carefully at the Amnesty International report and at the reports made when Jack Straw investigated all the flights where we had contact with the United States, and I have looked at their submissions as well, and I say to noble Lords that these allegations are groundless and baseless and should not be repeated without proper evidence.

Lady Saltoun of Abernethy: My Lords, before the Minister sits down, did I really understand him to say that he did not consider extraordinary rendition to be repugnant?

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Lord Davies of Oldham: My Lords, we are on a very strict timetable. The House will recognise that it is 8.42 pm and we are due to resume consideration of the Bill. I am very sorry.

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