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In the spirit of flexibility that we have at this stage, perhaps I may also comment on the previous amendment. I have heard the strong feelings expressed by the noble Lord, Lord Garden. I will

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reflect on them and talk to my ministerial colleagues to see whether I can do anything to help further to meet his real concerns. As I have said, the outcome of the Blake review of the learning from Deepcut is of central importance to us.

Lord Astor of Hever: I thank my noble friend Lord Attlee and the noble Lord, Lord Garden, for their support. I very much take on board the points that they and the noble Lord, Lord Thomas, made. I thank the Minister for his very positive response. I am very pleased to hear that his department is hard at work on the new manual. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Garden moved Amendment No. 183A:

(a) prevent further movement of the aircraft; and (b) inform higher authority.”

The noble Lord said: My amendment is designed to clarify the position for commanding officers of any service who have an airfield under their command if they have suspicions that the aircraft movements on their airfield contravene either national or international law.

The Minister sent me a letter today in which he picks up one aspect of that: extraordinary rendition. Of course there are other possible breaches of international or national law, for example the movement of weapons from one country to another when there is an international sanction. But perhaps we may just consider extraordinary rendition for a moment, which we debated in the context of the Civil Aviation Bill and will debate in the context of the Police and Justice Bill.

This is a narrow question, but we now know that military airfields are used for flights by Central Intelligence Agency aircraft. The status of the aircraft was difficult to establish within the Civil Aviation Bill—whether they were commercial, civil, military or what—but we know that Brize Norton and Northolt have certainly been used and that the transits of those aircraft are to and from places where there might be interest in moving people for interrogation. We do not know whether that happens, and we receive endless assurances from the Government that they have always received assurances from the American Government that that is not what the flight is being used for.

Nevertheless, there is a question to be asked: what is the responsibility of the commanding officer? I raise that because there has now been a case in Italy where a member of the Italian military in the

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intelligence branch has been prosecuted for assisting in extraordinary rendition. So military officers appear within Europe to be liable if they have in some way assisted in extraordinary rendition. My amendment seeks to make clear where the buck stops for the commanding officer, the limits of responsibility, and what action should be taken to discharge that responsibility. I beg to move.

4.30 pm

Baroness D'Souza: I have put my name to the amendment, and shall say a very few words. The Minister, senior military personnel and some of the legal drafting team held a briefing meeting earlier this week, for which I was very grateful. It was certainly illuminating. I understand from the meeting that there is an agreement between the UK and other western nations whereby military aircraft are cleared by senior government personnel so that they have already been cleared by the time they arrive. I also understand that this is an old arrangement, which continues. This introduces a serious lack of transparency, and I am slightly more concerned about the possibility of the practice of extraordinary rendition than I was even before I learnt about this. Someone somewhere must be taking that decision based on evidence that is nowhere near available to the public, although it is certainly a public concern and of public interest, as we know. Can we discuss with the Minister between now and Report some way in which we could introduce some measure that would ensure much greater accountability in view of the seriousness of the suspicion and also because of the public concern?

Earl Attlee: I strongly support the amendment, apart from the fact that it does not go far enough. Members of our Armed Forces should be prohibited from having anything to do with extraordinary rendition.

Lord Campbell of Alloway: I support the amendment, but it does not really deal with the essence of the problem, which has been debated on many occasions. On 18 July, in a debate on arrangements made for extraordinary rendition, the noble Lord, Lord Garden, asked the very question, at cols. 1219-20 of the Official Report, that concerns us today. I shall not take very much time today, as I spoke in that debate; in fact, I initiated it. At cols. 1223-24, which is the crucial passage, the noble Lord, Lord Triesman, dealing specifically with the question put by the noble Lord, Lord Garden, spoke about arrangements for extraordinary rendition and said that exactly the same arrangements apply to the transfer of weaponry. He said:

I think that includes those on charter to the CIA—

Soon after, we read in the papers, and it was never denied, that the same arrangements were being made to carry sophisticated weaponry from the United States through Prestwick, to land for refuelling, to

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Israel to bolster the attack on Hezbollah, for which the ceasefire had been postponed.

One need not, in the context of international obligations, start to enumerate how many are involved. Therefore, I very much support this proposal. However, I think that the background is relevant to this degree. On 24 July, I sought to ask a Private Notice Question on this matter. The Question was:

The Question was rejected on the advice that there had been no substantial development since the debate on 18 July and that it did not fulfil the dual criteria of urgency and importance. Of course it does not matter that the Private Notice Question was refused. But it does show the attitude of the Government. One must be careful here, because I think it is fairly understood that at that time—over the ceasefire and the delivery of arms—the attitude of the Cabinet was split. Inevitably, the Private Notice Question was going to fall into a quicksand.

I mention the background not to complain that they did not take my Question—that does not matter. What does matter is that the amendment proposed by the noble Lord, Lord Garden, should be put in context with the background. I support the amendment.

Lord Craig of Radley: I do not think that I would support the amendment in its present form. It is not that there are not serious concerns about this which have been expressed from various sides of the House. But I think that one must recognise that in any unilateral action such as this there is almost bound to be a tit for tat. I do not suggest for one moment that our military or civil aviation would behave illegally. But it is not how we might perceive it: it is how the hosting nation might perceive it. One needs to give a lot more thought to a proposal of this sort than appears to have been given so far. It has to be seen in the international context, not just in the national one.

Lord Kingsland: We are signatories to the 1984 Convention on the Prohibition of Torture, which prohibits torture in all circumstances. Its intimate link with torture makes extraordinary rendition an international crime. It is an international crime which is not just applicable to states: it is a crime that engages the actions and responsibilities of individuals who are themselves vulnerable to prosecution for any transgression of the convention. Moreover, every state that is a signatory of the 1984 convention is under a legal duty not only to prosecute anyone who commits torture within its jurisdiction, but also anyone who is complicit in an act of torture. That follows from Article 4 of the convention.

I am in no doubt that if the commanding officer of any aerodrome in the United Kingdom had reason to believe that an in-transit aircraft was engaged in an act of external rendition, or there was a real risk that it

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was so engaged, he would be under a personal legally binding duty to investigate the matter, irrespective of any superior orders he had had to the contrary. Not to act, in those circumstances, would render him liable to prosecution for complicity in torture.

That being so, in my view this amendment is unnecessary; because all the ingredients of the duty are there already by nature of our international obligations which run right through to the actions of individuals. But if we were to have an amendment of this sort on the statute book, I would certainly wish to have it drafted differently. By saying that I in no way intend to criticise the noble Lord, Lord Garden, who I applaud for raising the issue in the course of the debate.

The particular problem I have with the drafting of his amendment is that a commanding officer could escape the personal responsibilities that he is undoubtedly under simply by accepting the word of a superior officer that there was no problem. That is almost counterproductive; in fact it misleads a commanding officer, as perhaps the Italian officer now being prosecuted in Italy found out to his cost. I can see the noble Lord, Lord Garden, helpfully nodding in assent. I do not think it is necessary to have something on the statute book, but if we are, we need to reflect a little further on the drafting.

Lord Drayson: I recognise the concern on this matter, in particular as it has been expressed in so far as it relates to the subject of extraordinary rendition. On that area, on behalf of the Government I do not have anything to add to what my noble friend Lord Triesman said on the subject in the debate on 18 July, as has been highlighted by the noble Lord, Lord Campbell of Alloway. But I hope that I am able to reassure noble Lords about the specific concern which has given rise to this amendment: that station commanders might themselves be liable to prosecution as a result of extraordinary rendition flights.

I have written to the noble Lord and others and, as the noble Baroness, Lady D’Souza, has highlighted, only the day before yesterday we had a briefing on this subject. However, I am pleased to have the opportunity to put some aspects of this on the record. It is important to stress at the beginning that the position with regard to military flights is that they are given diplomatic clearance on the basis that they are military flights. It is not a matter of looking at each flight and deciding whether or not to clear it. As the noble Baroness pointed out, it is a matter of the clearances being given at the diplomatic level. So, foreign flights are subject to those diplomatic or other flight clearance arrangements and therefore they arrive at a military base with the necessary flight clearances. They land, refuel and leave. That is part of the normal arrangements between states, and as the noble and gallant Lord said, there is a reciprocity aspect to this.

I understand the desire for ensuring transparency in these arrangements and I will read Hansard, reflect further on it and then pass on comments to my colleagues in government about the concerns which have been expressed in our discussion this afternoon. But I do not believe that it is appropriate in this Bill to

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put the responsibility on to commanding officers. We can see no real basis for concern that commanding officers might be criminally liable under the current arrangements. I was not aware of the case in Italy, but I shall study it.

4.45 pm

I believe that the amendment as drafted would reverse the position. The details of the amendment would impose an impossible burden on commanding officers. I am sure that the noble Lord, Lord Garden, with his experience of military matters—particularly in the air force—knows the burdens on a commander of an air force station. There are a great number of circumstances in which aircraft using our airfields, depending on their cargo, are already subject to numerous procedural and licensing requirements—for example, to prevent smuggling. To impose a burden on the military commanding officer of the base personally to check compliance with all of the requirements for every flight would be onerous and inappropriate.

Moreover, the obligations under the provision would have effect only if their breach by a commanding officer made him liable for prosecution under the Bill as an accessory to the breach or at least for neglect of duty. That must be the implication of the amendment, but we believe that that is against all principles of fairness.

I hope that what I have said gives noble Lords some reassurance. Given that I have made a commitment to pass on the concerns surrounding the issue of extraordinary rendition, and having heard what I have said, I hope the noble Lord will feel able to withdraw the amendment.

Lord Garden: I am grateful to the Minister for his reply and to those who have spoken in this short debate. The noble Baroness, Lady D’Souza, has been a great ally in looking at the different aspects of how we can ensure that extraordinary rendition does not happen in movements either within the United Kingdom or through United Kingdom airspace. The noble Earl, Lord Attlee, was supportive but wanted even more. As extraordinary rendition is illegal for the reasons that the noble Lord, Lord Kingsland, explained, I think that my amendment encompasses the noble Earl’s concerns. I am again grateful to the noble Lord, Lord Campbell of Alloway, for his continuing support in this area. I take very much to heart what the noble and gallant Lord, Lord Craig, said about the problems of other states taking reciprocal action, but I do not think that that can stop us ensuring that we have in place the right procedures for obeying international law.

I thought that the analysis of the noble Lord, Lord Kingsland, was wonderful. I take full responsibility for the drafting—I am not a lawyer, nor ever will be—and I look forward to receiving help in getting the words right. The problem would be solved if the Hansard report of the noble Lord’s speech were issued to every commanding officer, because it would tell them what their responsibilities were. The Minister

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said it is unfair to put such responsibilities on them. But it is not a question of whether it is unfair to put these responsibilities on them—they have them under international law and cannot get out of it. Whether they know they have this responsibility is an entirely different matter, but you cannot start excusing the responsibility on the basis of bureaucratic burdens and so on. As we all know, commanding officers have lots of bureaucratic burdens of one kind or another. They do not personally go and inspect every aircraft that comes through—they have systems—but they are the focus of responsibility. The Bill gives them that responsibility in many different areas and the amendment would be no different.

Although I accept that the drafting of the amendment is imperfect, the sentiment is strongly felt in various parts of the Committee. We need to look at the drafting and consider by what other system, if not in the Bill, we can alert commanding officers to their present responsibilities if they are not ultimately to get themselves into hot water. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clauses 355 and 356 agreed to.

Lord Thomas of Gresford moved Amendment No. 184:

The noble Lord said: This amendment is inspired by the report of the House of Lords and House of Commons Joint Committee on Human Rights which was published in July last, shortly before our first day in Committee. The report points out that in the case of Grieves v UK, the European Court of Human Rights criticised naval courts martial. The key issue was that the judge advocate was a serving naval officer who, when not presiding over courts martial, carried out regular naval duties. The court criticised the fact that he was not appointed permanently and stated that the lack of a civilian in the pivotal role of judge advocate deprives a naval court martial of one of the most significant guarantees of independence enjoyed by other courts martial. The finding of the court was that, because of this, the naval court martial could not be seen objectively as independent and impartial. There was therefore a violation of the Article 6 requirement for a fair trial.

The committee asked the Minister to confirm whether it is intended that the judge advocate will be a civilian and whether this would be stated on the face of the Bill. This amendment gives the Minister the opportunity to put in the Bill the provision that would make the system that the Government have devised compliant with the European convention. I beg to move.

Lord Drayson: I am grateful to the noble Lord, Lord Thomas of Gresford, for giving me the opportunity to respond. As he says, Amendment No. 184 reflects an issue raised by the report of the

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Joint Committee on Human Rights published on 21 July 2006. The committee questioned why, given the importance the European Court of Human Rights in the case of Grieves placed on the need for judge advocates to be civilians, this was not stated in the Bill.

All judge advocate appointments are made by the Lord Chancellor after a fair and open competition conducted by the Judicial Appointments Commission. It is my contention that the civilian status of judge advocates is protected both by their method of appointment and by the policy of all the Armed Forces, most particularly the Royal Navy, following the Grieves judgment of 2003. Therefore, I believe that the amendment is unnecessary. I understand the concern expressed and trust that in the light of my explanation, the noble Lord will agree to withdraw the amendment.

The new clause proposed by Amendment No. 184A defines who may be a judge advocate. The Judge Advocate General is responsible for appointing judge advocates to individual trials. Under this clause, the Judge Advocate General may select a judge advocate who has been appointed under Section 30 of the Courts Martial (Appeals) Act 1951, or he may request that a High Court judge is nominated by or on behalf of the Lord Chief Justice. The power to select judges of the High Court in England and Wales will rarely be used, but as noble Lords will be aware, one has been selected for an important trial which began recently, arising out of the death in 2003 of an Iraqi citizen in British custody. As at present, if the Judge Advocate General wishes to select a High Court judge for a trial, the Lord Chief Justice will need to be convinced that the case is a suitable one for such a judge. The Judge Advocate General will then be informed of the name of the High Court judge under the cab rank rule.

Amendment No. 201ZA is a consequential amendment to add a cross-reference to the new clause into the definition section.

Lord Thomas of Gresford: I am grateful for the Minister’s assurance in relation to the civilian status of the judge advocates. I accept his explanation and will not pursue my amendment.

So far as the Government’s amendment is concerned, I welcome the ability of the Lord Chief Justice to nominate, at the request of the Judge Advocate General, a High Court judge to sit in serious courts martial. When he sits in that capacity, he does not have the powers of a High Court judge; he exercises the powers of a judge advocate. However, I have not found that to be a particularly difficult problem. I welcome that and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Crawley moved Amendment No. 184A:

(a) the Judge Advocate General; (b) a person appointed under section 30(1)(a) or (b) or (2) of the Courts-Martial (Appeals) Act 1951 (c. 46) (assistants to the Judge Advocate General); or
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