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Lord Davies of Oldham: My Lords, I am grateful to both noble Lords who have contributed to this short debate. We had the advantage in Committee—admittedly, three months ago—of rehearsing most of these arguments. From the Government's point of view, not much has changed in that period, so I am afraid neither will the Government's response.

The noble Lord is seeking a fundamental change in the way in which the UK legislates for airline liability for surface damage caused by an aircraft. I am afraid that we do not think that the proposal in the amendment is the way forward. It seems that the exclusions to liability proposed in the amendment have been taken from maritime law—I raised this issue in Committee. In maritime law, these issues obtain only in specific circumstances, which do not exist in aviation law. We do not sign up to agreements in aviation in the same way as we do with regard to maritime matters.

8.45 pm

The broadening of the removal of liability to include,

raises a number of fundamental issues. I pay tribute to both noble Lords who have spoken, as they dealt with some of those fundamental issues, although one or two were omitted. When we talk of an exclusion for an act of war, which is to say a course of hostility engaged in by an entity with significant attributes of sovereignty, or an exclusion for hostilities, which is to say hostile acts committed when a state of war is in existence and committed by persons acting as agents of sovereign powers, then we are immediately addressing an
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international issue. Yet the noble Lords' amendment is silent about this vital dimension to the debate. It proposes a UK solution.

Air travel is by its very nature international. It is not an area where it makes sense for the UK to act on its own. It would be illogical to limit airlines' liability for events in the UK, including the liability of foreign airlines on our territory, without also dealing with the liability of UK airlines for events on foreign territory. The proposal seems to treat the UK as somehow separate from the rest of the world. I maintain that that is an artificiality, which we cannot accept.

Lord Clinton-Davis: My Lords, what would happen if there was no conclusion internationally? Can we take any action at all?

Lord Davies of Oldham: Well, my Lords, if there was no conclusion internationally, we would be where we are now, which I agree with my noble friend is an unsatisfactory position. That is why we are working to make progress towards international solutions to this, as I will try to identify in a moment.

The amendment proposes not only a national solution, but national support for the compensation funds involved. It seems to imply that the Government should pay or that the full costs of damage caused by such events should fall on the UK taxpayer. Of course, the Government are concerned about such a potential development.

The issue was presented forcefully in Committee by noble Lords who spoke on that occasion, and the noble Lord, Lord Hanningfield, has returned to the issue today. We have, of course, given the matter careful thought, because we are aware that the present situation is very difficult. However, our way forward is this: because aviation is a truly international business, we believe that the solution to issues of this kind must be found through international agreement. In the longer term, a solution to the problem of capping airlines' liability with respect to third parties is most likely to come via some form of international agreement. This looks most likely in the context of the work currently being undertaken by the International Civil Aviation Organisation to revise the 1952 Rome convention on third-party liability, although I accept the point made by my noble friend Lord Clinton-Davis that we are some way off reaching agreement in that area. In the shorter term, we need to be ready in case airlines are exposed to uninsurable risks. That was the burden of the remarks of the noble Lord, Lord Hanningfield.

After 11 September 2001, we stated:

That remains the Government's position. We are aware of calls by the aviation industry for states to indemnify airlines against third party war and terrorism risks. However, in balancing the risk, we
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favour a solution that maintains as much market involvement as possible and seeks to maximise the amount of commercial insurance available.

I regret that changing the status quo in the way that the noble Lord, Lord Hanningfield, proposes would strike a wrong note about the Government's resolve to deter terrorism. I know that the noble Lord shares that resolve. It would signal that terrorism and its consequences are the responsibility of the state and that financial reparation for such acts should be transferred wholly to the British taxpayer. We do not intend to exempt or limit airlines' liability through UK legislation in those terms. We recognise the difficulties of the situation. We certainly are not prepared to see our airlines fail to operate, but the solution has to be an international agreement; we cannot do it uniquely and alone through UK legislation. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Hanningfield: My Lords, I thank the Minister for that response. He acknowledged that the situation now is not very good—I think he said that it was imperfect—and he went on to say that we should find an international solution. Obviously we would all like that to happen. But, if it does not happen, it is our duty as a British Parliament to try to protect the interests of British businesses and so on. I shall analyse what the Minister said but, as the noble Lord, Lord Clinton-Davis, indicated, we may have to return to this matter.

I had hoped that the Government could give us a little more reassurance that there might be a way forward if we did not get an international solution. The situation is not right and something needs to be done about it to protect British interests. I shall withdraw the amendment today and reflect on it before Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness D'Souza moved Amendment No. 22:

(1) If the Secretary of State is aware of intelligence that any aircraft entering British airspace is being, has been or may be involved in an act of unlawful rendition then he may require that aircraft to land at a designated suitable airport.
(2) If any plane is required to land in accordance with subsection (1) a responsible person shall as soon as practicable—
(a) enter the aircraft; or
(b) arrange for a police constable or authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.
(3) If the Secretary of State or other responsible person is aware of intelligence that an aircraft using airport facilities in the United Kingdom is being, has been or may be involved in an act of unlawful rendition then a responsible person may make arrangements to—
(a) enter the aircraft; or
(b) arrange for a police constable or an authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.
(4) A person who enters an aircraft under subsection (2) or (3) shall endeavour to ascertain—
(a) whether the aircraft is being or has been used for an act of unlawful rendition;
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(b) whether a criminal offence has been committed;
(c) whether allowing the aircraft to continue could place the United Kingdom in breach of its obligations under the European Convention on Human Rights;
and for these purposes the person may search the aircraft.
(5) In order to comply with a power under subsection (4) any item may be removed from the aircraft.
(6) For the purposes of this section—
"an act of unlawful rendition" is an act involving the transportation of a person to a territory where international human rights standards, in particular protections against torture and inhuman and degrading treatment, are not observed, such transportation not being in accordance with formal lawful extradition or deportation procedures;
"a responsible person" means—
(a) the chief officer of police of a police force maintained for a police area in England and Wales;
(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967 (c. 77);
(c) the Chief Constable of the Police Service of Northern Ireland;
(d) one of the Commissioners for Her Majesty's Revenue and Customs."

The noble Baroness said: My Lords, I am fully aware that we are on Report and I will therefore be as brief and to the point as I can. However, this is an important matter: the amendment aims to provide a simple but effective mechanism to investigate aircraft suspected of being involved in the illegal practice of extraordinary rendition.

There is no suggestion that the UK Government are practising, or have ever practised, extraordinary rendition in any form—of course not. But up until Monday of this week, there was circumstantial evidence to suggest that the UK may have facilitated this practice by allowing refuelling stops by aircraft used by the US Government or private aircraft owned or leased by the CIA for the purpose of transporting detainees to a third country for interrogation. Yesterday, the Armed Forces Minister, Adam Ingram, disclosed that aircraft suspected of being used by the CIA had in fact landed at British military airfields.

When this issue was first raised in Grand Committee last December, it was judged to be both inappropriate and inapplicable in large part due to the terms of the Chicago convention. However, that is now acknowledged by the Government to be irrelevant, and I quote the answer given by the Minister, the noble Lord, Lord Triesman, in response to a Written Question from the noble Lord, Lord Lester:

In fact, research carried out by experts in international transport law shows that the Chicago convention and the later Tokyo convention impose a positive duty on the part of government to investigate. The Tokyo convention, for example, allows a state to interfere with an aircraft in flight if,

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We are dealing here with illegal seizing, transport and possible—even likely—torture of individuals. This practice infringes just about every human rights treaty on the books, including the torture convention, which, as is well recognised, carries an absolute prohibition of torture, no matter what the circumstances.

The facts surrounding this practice of extraordinary rendition are hard to come by. However, such is the concern, uncertainty and suspicion that it has occurred and continues to occur, possibly on a regular basis, that no fewer than 10 European member states have set up official inquiries into US transport and CIA flights into their respective countries. The Secretary-General of the Council of Europe reported last week on a year-long study into extraordinary rendition, in which he said:

He goes on to say that,

I quote again:

The former Secretary of State, Mr Colin Powell, is quoted in a report by the Swiss Senator Mr Dick Marty as accusing a number of European countries of hypocrisy in that, while benefiting from the intelligence that the Americans gather, they publicly distance themselves from the methods by which it is obtained. The UK National Air Traffic Services confirmed on 22 February of this year that in the past five years two aircraft believed to have been chartered by the CIA, as identified by their registration numbers, had passed through the UK on more than 200 occasions.

The Government, in denying any awareness of extraordinary rendition, have relied heavily on a firm statement made by the current Secretary of State, Miss Condoleezza Rice, just prior to her departure for a European tour last December, in which her very carefully crafted words denied any involvement in extraordinary rendition. However, we have to be very cautious here. The US has derogated from the "cruel, inhuman or degrading treatment" clause of the UN torture convention. This allows it to interpret such acts as falling short of torture. Moreover, the wording of the statement includes the sentence,

It could well be argued that what the US believes does not necessarily conform to the beliefs of the international human rights community.
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I am as interested in preventing terrorist acts as anyone else. I do not wish to appear a harridan, but the practice of extraordinary rendition is monstrous and monstrously illegal. The amendment before your Lordships, for which I gratefully acknowledge the painstaking work of Liberty, Redress, the Medical Foundation for the Care of Victims of Torture and several legal experts, is straightforward and highly relevant to the Civil Aviation Bill in that it deals with a mechanism to ensure that aircraft flights conform with the statutory obligations of the Government. It simply empowers the appropriate authorities to require aircraft suspected of being involved in extraordinary rendition to land and to be searched. I suggest that this is the only way in which dangerous rumours and suspicions can be put to rest and any future acts of extraordinary rendition via the UK can be pre-empted. I beg to move.

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