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The second point in the amendment—

4.15 pm

Lord Campbell of Alloway: My Lords, I apologise. There is a point of clarification here. I take the point that when permission was sought, it was granted in one case and refused in two. But we have since been told that you do not have to ask for permission. In the arrangements that apply to this rendition and to the arms affair, you do not have to ask for permission. If that is the position, where do we go from there? Is not the only way to qualify those arrangements, consult and investigate? I ask only for clarification.

Baroness Scotland of Asthal: My Lords, I understand the way in which the noble Lord has put it. We would say that in each case a request should be made. Aircraft used in military, Customs and police services are deemed to be state aircraft. They are not covered by the Chicago Convention but by customary international law whose principles are, I accept, less clear. State aircraft need authorisation to fly over the territory of another state. US military flights, along with military flights of a number of other countries, have for decades been given advance diplomatic clearance in accordance with bilateral arrangements.

I cite the United States for the purposes of this debate but we expect anyone crossing our airspace in the way that the noble Lord has indicated to seek permission to render detainees via United Kingdom territory and airspace, including overseas territories. We will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. The next point is how we understand our obligations under the UN Convention Against Torture and the European Convention on Human Rights.

The Government have been very clear that the United States would not render a detainee through United Kingdom territory or airspace without our permission. We have not reached this conclusion

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without close examination of the matter. That is why, when my right honourable friend the then Home Secretary made his Statement, he affirmed that we had reviewed the records going back to May 1997 and had found four cases, in two of which we had given permission and two of which we had denied it. It is for that reason that I gave the information to the House earlier.

The second point is whether there is a gap. Is the perception of my noble and learned friend Lord Archer real? We would say that it is not. Section 8 of PACE allows a justice of the peace to issue a search warrant authorising a constable to enter and search premises if there are reasonable grounds for believing that an indictable offence has been committed and that there is material on the premises likely to assist in the investigation of the offence. In the case of unlawful rendition, if the person is being held unlawfully in the aircraft, the common law offence of false imprisonment is likely to have been committed and would provide a basis for intervention under Section 8. So I do not accept that kidnapping would not be covered in the way that the noble Baroness, Lady D’Souza, fears; we believe that it would. This provision would be effective in any suspected example of unlawful rendition when credible intelligence suggests that an offence has been committed. Clearly, if the intelligence is not credible, no action would be taken.

Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend for giving way. Does not Section 8 also require that there has to be reason for believing that there is material on the premises that would assist in the investigation? I think my noble friend said that a few moments ago. While there may be a logbook or something like it in the aircraft, is she satisfied that in every situation where there is a suspicion of this kind, the logbook could be said to be material which would assist in the investigation?

Baroness Scotland of Asthal: My Lords, it is not simply material. Section 8 of PACE allows a constable to enter and search if there are reasonable grounds for believing that an indictable offence has been committed and there is material on the premises that is likely to assist in the investigation of the offence. If someone was being rendered unlawfully across our airspace and being unlawfully imprisoned, we believe that they would fall within Section 8. That is our view of where the law currently is. So it is covered.

Baroness D'Souza: My Lords, I am grateful to the Minister for giving way. Section 8 of PACE refers to search by warrant, but the amendment we have put forward refers specifically to those instances where it is not practicable to secure a warrant.

Baroness Scotland of Asthal: My Lords, the amendment deals with the case where it is not practicable to secure a warrant. However, it should always be practicable to secure one because there is a

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24-hour opportunity to do so. One gets the warrant; the piece of paper may come later, but the warrant should always be immediately available. I respectfully suggest that that is not something which need be an impediment. How these things work in practice is always fairly opaque, and I am happy to clarify the position for the noble Baroness. I am sure that the noble Baroness, Lady Anelay, who I see is in her place, has probably granted many such applications when sitting as a magistrate.

Section 17 of PACE is also relevant because it provides that a constable may enter any premises for the purposes of arresting a person for an indictable offence. This provision would be relevant in any case involving an ongoing offence such as, for example, false imprisonment. Again, as with Section 8, there must be reasonable grounds to believe that the person being sought is on the premises. For the purposes of these provisions, an aircraft would be a premises. That is a somewhat interesting legal construction, but it is where we are. This means that if there was credible intelligence that a person was on an aircraft and was being unlawfully rendered to places where there were substantial grounds to believe that they would face a real risk of torture, there would be a legal basis to intervene under Section 17 as well Section 8 of PACE. Section 23 of PACE confirms that the references to “any premises” in Sections 8 and 17 do include an aircraft.

Noble Lords have already referred to the convention. This of course is paragraph (c) ofArticle 3 of the Chicago Convention which permits state aircraft to overfly territory of other states only with permission and on the terms of the state whose territory is to be used. Any flight of whatever nature not taking place on these terms would be contrary to the convention and could, at least in theory, be required to land and be searched under the powers I have mentioned.

I hope that I have been able to satisfy your Lordships that there is no legal gap in police powers to investigate suspected acts of unlawful rendition. But of course the real question may be practical rather than legal, as I tried to explain on 4 July when the Bill was being examined in Committee. That is at col. 217 of the Official Report. I shall not repeat the points I made then. With your Lordships’ indulgence, suffice it to say that if the security and law enforcement agencies ever received intelligence that could give rise to the types of action envisaged in the amendment, and on a timescale which would permit such an action, they would already be able to undertake it. But the chances of that happening are negligible.

I am conscious that we have spent a great deal of time discussing this issue. However, I felt that I needed to give my noble and learned friend Lord Archer a specific answer on the Al-Rawi and El-Banna question. First, I am pleased to note that the Court of Appeal has confirmed the propriety of the Government’s actions with regard to their decision. Secondly, as regards the point raised by my noble and learned friend, I can confirm that the UK did not request the detention of Mr Al-Rawi or

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Mr El-Banna in the Gambia and played no role in their transfer to Bagram and Guantanamo Bay. I hope that that satisfies the House.

I am conscious that this issue has caused concern and I am grateful for this opportunity to better explain our position and why we think the anxieties expressed by the House—although we understand them—are not founded in fact. I therefore hope the noble Baroness will feel content to withdraw her amendment.

Baroness D'Souza: My Lords, I thank the Minister for her care and patience not only in meeting us but in going to such lengths to explain her interpretation of the law and how it would deal with this odious issue of extraordinary rendition. She argues very persuasively that the law is adequate. However, I feel that there is still room for specific legislation in this field—to deal not only with the reality but also, as has been said, with the perception that it occurs.

The amendment goes one step further in that it deals with people and individuals. It also, in a very important way, imposes a duty to inspect aircraft which are in any way suspected of being implicated in extraordinary rendition. The issue has been raised that there is a lack of transparency in agreements about the landing and refuelling of foreign aircraft and I think it is important that we should have such a duty. In view of that, I would like to test the opinion of the House.

4.27 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 87; Not-Contents, 147.

Division No. 1


Addington, L. [Teller]
Allenby of Megiddo, V.
Alton of Liverpool, L.
Archer of Sandwell, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Beaumont of Whitley, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bramall, L.
Campbell of Alloway, L.
Chidgey, L.
Chorley, L.
Cobbold, L.
Cotter, L.
Cox, B.
Craigavon, V.
Darcy de Knayth, B.
Dholakia, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Ezra, L.
Falkland, V.
Finlay of Llandaff, B.
Fraser of Carmyllie, L.
Garden, L.
Glasgow, E.
Goodhart, L.
Greaves, L.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Howe of Idlicote, B.
Hylton, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
Kirkwood of Kirkhope, L.
Laird, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Listowel, E.
Lucas, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Manchester, Bp.
Masham of Ilton, B.
Methuen, L.
Neill of Bladen, L.

18 Oct 2006 : Column 786

Neuberger, B.
Newby, L.
Newcastle, Bp.
Norton of Louth, L.
Patel, L.
Pendry, L.
Perry of Southwark, B.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Roberts of Conwy, L. [Teller]
Rogan, L.
Roper, L.
Russell-Johnston, L.
Ryder of Wensum, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Stern, B.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tordoff, L.
Turner of Camden, B.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Williamson of Horton, L.
Young of Hornsey, B.


Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Armstrong of Ilminster, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bilston, L.
Blood, B.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Condon, L.
Corbett of Castle Vale, L.
Cunningham of Felling, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Imbert, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Macaulay of Bragar, L.
McCluskey, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marsh, L.
Massey of Darwen, B.
Mawhinney, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Plant of Highfield, L.
Prosser, B.
Quin, B.
Randall of St. Budeaux, L.

18 Oct 2006 : Column 787

Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Skidelsky, L.
Smith of Gilmorehill, B.
Soley, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Vinson, L.
Wall of New Barnet, B.
Warner, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.38 pm

Clause 19 [Local authority scrutiny of crime and disorder matters]:

Lord Bassam of Brighton moved AmendmentNo. 4:

The noble Lord said: My Lords, I am introducing these amendments in response to those tabled by the noble Lord, Lord Brooke of Sutton Mandeville, on Report last week. I gave a commitment and promised that I would introduce these amendments. It gives me great pleasure to—I hope—make the noble Lord a much happier person.

The noble Lord understandably expressed concerns about how the arrangements for scrutiny of crime and disorder matters provided for in what is now Clause 19 would operate in the City of London. I recognise that the City is far from being a typical local authority. It has distinctive governance arrangements, and it is our ambition to work with the grain of those arrangements and try to secure a sensible and appropriate method for scrutiny for the City in terms of crime and disorder issues. Accordingly, these amendments, together with the subsequent regulations and guidance, will enable the City to use its existing committee structure rather than force it to set up a specially tailored crime and disorder committee, which we accept would be somewhat disproportionate. The Common Council will subsequently be able to act as both the local authority and the crime and disorder committee.

I hope that these amendments meet with the approval of the noble Lord, Lord Brooke. I beg to move.

Lord Brooke of Sutton Mandeville: My Lords, I am most grateful to the Minister for bringing forward these amendments to address the City’s concerns. I am also grateful for the Minister’s indication that the City will be consulted about the drafting of regulations and guidance. Doubtless that will give the

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opportunity to iron out what might also cause difficulties in practical operation of the provisions as they affect the City.

At the level of generality, the Minister, as he sought, has made me a happier man. I am sure he will not mind my asking about one point. The amendments do not quite follow the form of those I tabled on Report. I make no complaint about that, but there is a practical aspect on which I would be grateful for clarification. Paragraph 11(1) of Schedule 8 will enable the functions of the crime and disorder committee to be performed by the Common Council itself. That will no doubt happen where the crime and disorder matter under consideration is of particular importance. In those circumstances, Clause 19(1)(b) of the Bill will give the Common Council the power to make reports and recommendations “to the local authority”. By Clause 19(11) that means, in the case of the City, the Common Council. In other words, it provides a power for the Common Council to report to itself.

I understand the need to include a reference tothe making of reports and recommendations by the Common Council in the Bill, because it links into the requirement on the City’s other crime and disorder partners to respond to such reports and recommendations when copies are issued to them under Clause 19(8). However, I am struggling with the notion that, in the circumstances I have described, the Common Council should be a subject of statutory power to inform itself about its own deliberations. It would seem more apt if the requirement were on the City’s other crime and disorder partners to respond to reports or recommendations made by the Common Council, and not made to the Common Council.

I realise that Parliament reports to itself on the Report stage of a Bill, and that paradigm makes the amendment a form of compliment to the Common Council. The analogy is less than perfect, however, because a Parliamentary Report stage is fluid and subject to further consideration and amendment, whereas a report of the Common Council’s conclusions on a crime and disorder matter will be a final document. Reporting it back again will produce an additional step, which in practical terms will be otiose. I realise this observation may seem churlish, after the Government’s response to my amendments on Report in resolving at a technical level the crux I posed, but I simply make it because the method used has this mild Alice in Wonderland aspect.

If I can offer an olive branch in expiation of any churlishness on my part, I would be grateful if the Minister could confirm that the intended mechanism is indeed that Common Council should make reports and recommendations to itself in order to trigger a response requirement from its crime and disorder partners. Subject to that point of clarification, I again thank the Minister for the positive response to my amendments.

4.45 pm

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Brooke of Sutton Mandeville, for his kind comments. He has put his

18 Oct 2006 : Column 789

finger on something that I suppose could be described as a difficulty. I was intrigued by his description of the measure as an Alice in Wonderland approach.

One has to look at this matter in a practical light. The aim of the amendments is to enable the Common Council to delegate issues to its existing committee structure which will then issue reports and recommendations. It would be possible for the Common Council, in its capacity as a crime and disorder committee, to issue such reports and recommendations itself, but we do not foresee this creating any difficulties in practice. Indeed, the noble Lord anticipated how that might work and drew a parallel with parliamentary procedure. The House of Lords resolves itself into a Committee and that Committee reports back to the House of Lords in its guise as the Chamber which considers statutory matters. While it might seem somewhat odd to work in that way, there is a parallel on which we can draw. In practice, I guess that the Common Council will want to devolve these matters to a committee and ensure that it receives that committee’s reports to enable it to consider and finalise its own strategy. That arrangement works well in other local authorities. I hope that I have assured the noble Lord that the provision is workable and that the Common Council welcomes the amendment and is more than capable of dealing with it.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 5:

On Question, amendment agreed to.

Clause 23 [Parenting contracts: local authorities and registered social landlords]:

Baroness Linklater of Butterstone moved Amendment No. 6:

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