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The Government have told us that adequate laws already exist to deal with any possible case of extraordinary rendition. However, careful scrutiny of Sections 1, 8 and 17 of the Police and Criminal Evidence Act and Sections 2, 33, 34 and 163 of the Customs and Excise Management Act, although wide, do not cover the illegal detention and transfer of persons to places where torture is likely to occur. Existing domestic legislation, including that proposed in the current Police and Justice Bill, addresses smuggling, stolen goods, prohibited articles or exceptionally urgent circumstances required to save life or limb. It does not cover kidnapped individuals who may transit UK airspace or land at UK aerodromes via state or military flights.

The Government may well argue that, unless there is evidence that such an individual is destined for a country or place where torture is likely, no arrestable

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crime has been committed. However, first, it may well be that such information is not routinely requested by the UK Government from their international partners; secondly, that information may not be forthcoming; and, thirdly, there is absolutely no way of ascertaining either of those two possibilities because of the diplomatic clearances in force.

That does not inspire confidence that the practice of extraordinary rendition does not take place. It is unlikely that there will ever be evidence of this odious practice; it is, by its nature, covert. But that does not mean that it does not or cannot take place. I emphasise that the Council of Europe has categorically stated that extraordinary rendition flights have used EU space and EU airfields, including in the UK. The Vienna Commission and the Joint Committee on Human Rights have both called for special legislation to fulfil domestic and international obligations and to ensure that extraordinary rendition never happens in future.

I am not sure that that argument is any longer about convincing the Government but it is in answer to other bodies that have expressed serious concerns about the UK's involvement in the practice of ER and the adequacy of existing legislation. To my mind, it is the duty of Parliament to bring about legislation that covers a possible illegality. Of course, there is crossover in legislation—that is inevitable—but where uncertainty exists, as it certainly does in this case, it is entirely legitimate to call for clarification.

I finish with a statement given by the noble and learned Lord the Lord Chancellor Lord Falconer to the Constitutional Affairs Committee on 28 February this year.

Surely, the Government would wish to abolish all uncertainty or doubt as to the use of UK facilities to enable extraordinary rendition to take place. I beg to move.

3.45 pm

Lord Campbell of Alloway: My Lords, I support the amendment on the basis of the argument advanced by my noble friend Lord Kingsland on18 July in a debate concerning relevant arrangements. I ask that an investigation be reconsidered into the material which suggests a high level of suspicion. It was recognised by independent authorities—the Foreign Affairs Committee in another place—that there was a duty to inquire. I want to put the position of support totally straight. My noble friend Lord Kingsland said:

I very seldom speak for the Opposition—

That is where I stand. The integrity of the noble Lord, Lord Triesman, and of the noble Baroness, Lady Scotland of Asthal, is in no way called into question. Fortunately I am no longer at the disadvantageof having discourse with a probabilities mathematician—the noble Lord, Lord Triesman, explained the levels of probability. As I see the situation, one cannot approach this on that basis of a mathematical level of probabilities; one cannot even do that before one starts proceedings in the criminal courts. One has to assess fairly, on the available evidence and using one's common sense, what is the question of degree. The noble Baroness, Lady D’Souza, and I favour that approach over a mathematical one—I cannot add up, anyway.

On the available material from a recognised independent authority, the Foreign Affairs Committee of another place, the Joint Committee on Human Rights and other bodies have concluded that an inquiry should be set up. That material referred to by the noble Lord, Lord Triesman, has an evidential quality, quite apart from mere assertion. What quality is quite another matter. I have had and continue to have many happy discussions with the noble Lord, Lord Triesman, and have great respect for his integrity, but his approach is rather different from mine.

If the arrangements referred to on 18 July have already been investigated—I cannot say why, but I have reason to believe they have—that warrants further investigation by an independent body. That should not be in the public arena, however, so as to safeguard intelligence and security, as I said at col. 1211 on 18 July. I am therefore supporting this amendment as an opportunity to, yet again, ask the Government to reconsider.

Lord Garden: My Lords, my name is also on this amendment. The issues are clear and well known; I will not rehearse them again. We have cross-party and government agreement that transporting people to countries for the purposes of torture is both unacceptable and illegal. When we have raised these issues, as we did during the passage of the Civil Aviation Bill, the Government have taken the view that no new legislation is needed to ensure thatflights for the purpose of torture—extraordinary rendition—are kept out of the United Kingdom. We have indeed signed up to international conventions putting a duty on us to observe international law for flights landing in the UK or transiting our airspace. As the noble Baroness, Lady D’Souza, has pointed out, however, there are gaps, or perceived gaps, in the middle of this. We must ensure that those gaps do not exist.

Despite all the strong statements from the Government about the unacceptability of extraordinary rendition, there remains widespread concern, which noble Lords have expressed both today and in the past, that some flights sponsored by

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the United States Central Intelligence Agency have used United Kingdom airfields and airspace while moving to locations that, we believe, have been used for the interrogation of suspects. We also now know that the United States Government have adopted a rather different interpretation of what constitutes “torture” from that adopted by the United Kingdom. It is therefore presumably possible that the United States authorities could give assurances that the flights were not for the purposes of interrogation under torture under a United States definition, where international and United Kingdom law might take another view.

I hope that, this time, the Government will welcome this amendment as a way of clarifying the powers and responsibilities of all who may be concerned with suspicious flights. The amendment would also make the United Kingdom’s position on illegal rendition clear to the international community. Given that there are separate, particular difficulties with military airfields, I shall be tabling a parallel amendment as the Armed Forces Bill goes through your Lordships’ House. The two amendments together would give us a coherent approach to a serious problem, and I urge the Government to take the opportunity to adopt the amendment of the noble Baroness, Lady D’Souza.

Lord Archer of Sandwell: My Lords, we are on well trodden ground. The proposal of the noble Baroness, Lady D’Souza, was debated three times during the progress of the Civil Aviation Bill; it was debated in Committee on the present Bill; it was the subject of an Unstarred Question tabled by the noble Lord, Lord Campbell of Alloway; and it was debated last week in a slightly different form in an amendment tabled by the noble Lord, Lord Garden, to the Armed Forces Bill. Anyone might be forgiven for wondering what there is left to say. But a number of unanswered questions remain, and the basis for the noble Baroness’s anxiety is as clear now as when she first expressed it. Our discussions over that period may simply have deferred the time when we have to take a decision.

The revisions to the amendment that she originally tabled reflect two factors that emerged from our earlier debates. First, as she indicated, and as the noble Lord, Lord Garden, mentioned, there are divergent views about how far existing statutory powers are sufficient to ensure that the United Kingdom complies with its international obligations under the torture convention. Secondly, there is—so far as I am concerned, at least—an uneasy suspicion that there is a culture in some circles of not wanting to ruffle any feathers, particularly American feathers.

I am delighted that the noble Baroness has redrafted the amendment so that there would now be not merely a power to enter the aircraft, but a duty to do so. So where United Kingdom facilities may be being abused, the provision is no longer permissive, but mandatory.

Perhaps it would help to spend a moment clarifying what is now common ground and what remains debateable. I accept unreservedly that the

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Government totally condemn torture for the purpose of interrogation or for any other purpose. It hardly needs saying that I accept without hesitation that my noble friend on the Front Bench would not knowingly be complicit in the use of torture by the agents of this or any other country. I echo the gratitude expressed by the noble Baroness, Lady D’Souza, for the willingness of my noble friend and her officials to discuss this in order to assist in narrowing the area of dispute. I am not aware of any evidence to suggest that agents of this country have made use of torture, but what is in question is whether the Government have taken all the steps reasonably open to them to ensure so far as possible that no facilities have been made available to assist others with less scrupulous standards to subject anyone to the risk of torture. The torture convention imposes an obligation on states and individuals not to be complicit in acts of torture, an obligation of which the noble Lord, Lord Kingsland, reminded us last week. If that gives rise to a number of questions on which debate is not concluded, perhaps we may be forgiven for at least adverting to them.

First, is there evidence that facilities in this country have been abused to assist rendition to a destination where there was a risk of torture? The evidence is overwhelming that the actions of the CIA have led to people suffering torture. I regret having to state that so bluntly, as some of my friends are employed by the CIA. I am certainly not suggesting that every official of the CIA is complicit in the practice, and I appreciate the difficulty of controlling agents operating in foreign countries.

4 pm

We examined some of the evidence in the debates on the Civil Aviation Bill on 28 March and we reviewed it again in Committee on this Bill on 4 July. It is also reviewed in the Amnesty International report Partners in Crime. It was dealt with in some detail in the Council of Europe report by Senator Dick Marty and it was summarised by the Secretary General, Mr Terry Davis. It was even set out in the report Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions” by the committee on international human rights of the New York Bar and by the United States Center for Human Rights and Global Justice. Furthermore, in the United States there is considerable concern about the practice.

I am grateful to Liberty for its very helpful briefing on this subject, which was prepared in anticipation of our debates on the Bill. Of course the evidence does not establish that the facilities in the United Kingdom were used in the course of rendition. Its relevance is that it establishes the propensity of some CIA agents unscrupulously to practise extraordinary rendition—and any country offering facilities to aircraft operated by the CIA would be turning the proverbial blind eye if it ignored the record of those with whom it was dealing.

Even the United Kingdom is confronted by uncomfortable questions that need to be answered. Both the Council of Europe and the Amnesty reports

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referred to the case of Bisher Al-Rawi and Jamil El-Banna, which led to proceedings in the High Court for judicial review. They were arrested in Gambia, apparently in consequence of their travel arrangements supplied by United Kingdom officials, and were then sent by the CIA to Afghanistan. It is important to establish, if possible, whether the United Kingdom officials who supplied that information were aware of what was intended. Perhaps my noble friend will address that question when she replies.

The second question that requires to be answered is what precautions, in the light of the CIA's known record, can and should be taken to ensure that the United Kingdom is not used unwittingly in extraordinary rendition. Aircraft are not transparent; the only way to ascertain who is on board and in what circumstances is to enter the aircraft and look. An aircraft in state service—an expression that includes aircraft in military, customs or police service—is not entitled to fly over or land on the territory of another state without authorisation. I must confess that until the debate last week I had derived some comfort from that, as I had assumed that authorisation would be required prior to each such flight and it would be known when an aircraft was operated by the CIA. But, in the debate initiated by the noble Lord, Lord Garden, my noble friend Lord Drayson informed a startled House—at col. 440—that separate authorisation is not required, as there is a system of what is euphemistically called “diplomatic clearance”, which means that someone has given what appears to be blanket permission, and specific clearance by the airfield authorities is not required. I should be grateful if my noble friend would spell that out in a little more detail.

Does someone in this country have to be notified if it is proposed that a CIA-operated aircraft will fly over United Kingdom territory and make use of airport facilities, or is it done on a “Don't bother to mention it” basis for the whole category of military aircraft? Does it apply to all military aircraft or only to those of the USA? Is there a requirement to provide information on the purpose and destination of the flight? Does someone decide whether a specific flight calls for further inquiry? If so, who? Or does diplomatic clearance mean that no one asks any questions?

Of course, it is not suggested that every aircraft operated by the CIA should be searched. It is accepted that there is a stage where investigation may appear as harassment and that that may occasion friction with the United States. The proposal is that an aircraft should be liable to a requirement to land if the Secretary of State is aware of intelligence that it is being or may be used for unlawful rendition. Of course, there is room for discussion about the standard of intelligence required. The noble Lord, Lord Kingsland, helpfully provided an analysis of that question in our debate on 18 July, at col. 1220. But that problem is not incapable of resolution between us.

If there is such intelligence, surely the United Kingdom is under an international obligation to make inquiries before permitting such an aircraft to

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proceed. If the aircraft is required to land, there is surely no difficulty in having an official or constable available to conduct a search. The inconvenience to the aircraft is surely minimal by comparison with the risk that someone may be tortured.

The remaining question is the one referred to by the noble Baroness, Lady D'Souza, as to whether there exists a power under existing domestic law to enter and search an aircraft. The Government maintain that the whole proposal is unnecessary because the statutory power exists already. The noble Baroness, Lady D'Souza, has already addressed that matter; we have debated it more than once and I shall not weary your Lordships by rehearsing the argument again now. However, it would be helpful if, when my noble friend replies, she would say whether that is the only stumbling block that the Government see. If they are convinced that there is a need for something more than that, the other matters, which we have debated at such length, do not really prevent their acceding to the proposal. In any event, the question now largely falls because the proposal is that there should be a mandatory requirement, not merely a power. What troubles some of us is that this country may become complicit in these appalling practices, however unwittingly, because no one cared enough to ask the right questions and to conduct a simple search.

Lord Hylton: My Lords, the noble and learned Lord, Lord Archer of Sandwell, has shown clearly how a coach and horses can be driven through the good intentions and political correctness of this country. I am delighted that the Foreign Secretary has stated on behalf of Her Majesty's Government that detention without trial is ineffective against terrorism. That is a small step forward, but I point out that indefinite detention continues at Guantanamo Bay.

I go further and draw attention to an article in today's International Herald Tribune, which describes the sad case of Mr Sami al-Hajj, an employeeof Al-Jazeera television, who was arrested in Afghanistan and is still, five years later, in detention without trial at Guantanamo. I also point out that, following the signature of a new Bill in the United States, it is not clear to what extent the right of habeas corpus still applies in that country. It is also not clear whether extended sleep deprivation is a legitimate method of preparing people for interrogation within the United States. I suggest to your Lordships that the amendment is for the removal of doubt. It is therefore especially appropriate for Third Reading and I support it strongly.

Lord Lyell of Markyate: My Lords, I rise briefly to support the principle underlying the amendment. It is essential that the western world should not have double standards and should not be thought to have double standards. It is not good enough merely to pay lip-service to our opposition to extraordinary rendition. We must satisfy the world at large that we really mean what we say. The Minister will remember that we are currently prosecuting several officers before a court martial for allegedly turning a blind eye in slightly similar circumstances. As I say, double

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standards are not acceptable. I am sure that they are not acceptable to the Minister, and we want the strongest and clearest of assurances that this is something not only that we can do but that we must and will do.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, first, I thank the noble Baroness, Lady D’Souza, and my noble and learned friend Lord Archer for showing me the courtesy of talking to me about these issues in a little more detail before today. I am very grateful to them, as I am to all noble Lords for the care with which they have approached this issue. I confirm that I absolutely agree with the noble Lord, Lord Garden, that we have total cross-party agreement on this issue. There is nothing between us.

I also understand why there is anxiety about this issue. As a result, I do not hesitate to repeat what I have said on behalf of the Government on several occasions—that we have not approved, and will not approve, a policy of facilitating the transfer of individuals through United Kingdom airspace or territory, including overseas territories, where there are substantial grounds for believing that those individuals would face a real risk of torture. I know that all Members of your Lordships’ House are of one mind on this point, but it is important that we understand how we are currently protected. I heard what the noble Baroness, Lady D’Souza, and my noble and learned friend Lord Archer said about the question mark over possible gaps in conventions. The noble Lord, Lord Garden, asked whether the gaps were a perception or a reality and said that we must be sure. I hope that I will be able to explain to your Lordships that the anxiety of the House on this issue is not merited.

Again, I reassure the noble Lord, Lord Garden, that our position on rendition is clearly understood by our international partners, in particular—I say this for clarity, not emphasis—the United States. Again, I hear what my noble and learned friend Lord Archer says about people being worried about ruffling American feathers. I assure the House that I have never suffered from such a disability; it is not one that has afflicted me, as I think my visit to the United States to discuss our concerns over extradition has perhaps demonstrated to our American colleagues—with some success, if I may humbly suggest to the House. We are not resistant to making that clear. Our international partners have clearly understood the message about where we stand, and it is right that I make that clear.

The noble Lord, Lord Campbell of Alloway, asks how this has been demonstrated, whether we have had a review, and what our position has been. Again, I draw the attention of the House to the Written Ministerial Statement made by the then Foreign Secretary on 20 January, which set out the results of the extensive review of official records going back to May 1997. That review identified four cases where the United States requested permission to render one or more detainees through the United Kingdom or overseas territories. That is what it promised to do,

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and what it appears it did do on those occasions. Records show that the Government refused permission in two cases, but granted it in the other two. In the two cases where the request was granted, the individuals were transferred to stand trialfor terrorism charges in the United States and subsequently convicted. That is the context in which we must examine the proposals in the amendment in the names of the noble Baroness, Lady D’Souza, the noble Lord, Lord Garden, my noble and learned friend and others.

On the first point arising from the amendment, if we could create a mechanism to render unlawful rendition impossible we would do so. However, as this amendment does not create any powers that we do not already have in practice, perhaps I may respectfully suggest that it would have no effect whatever on the likelihood of unlawful rendition taking place. As my noble and learned friend Lord Archer said, there has been a divergence in views. I should therefore like, with your Lordships’ permission and to make it plain for others who may read this debate, to take a little time to explain why.

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