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Lord Dykes: My Lords, I thank wholeheartedly not only my colleagues but the sponsors of the new clause from other Benches. I support all the arguments that have been deployed so far. I shall add a few brief points of my own, conscious of the fact that I was not in Grand Committee and that the House is now reaching a late hour. However, it is the job of the Minister to give a convincing response—at least intermediate, provisional and pro tem answers—to some serious questions that have been raised in this debate.

What is happening in Guantanamo Bay and the extraordinary rendition scandal—that is the only word for it—are the two things that cause more unease than any other aspect; not least, the activities of the coalition forces in Iraq, the insurgency, and all that. Therefore, it is a very solemn moment at this stage of this Bill for the Government to reflect soberly about those searing and searching questions. I agree most warmly with the noble Baroness, Lady D'Souza, in her, as my noble friend Lady Williams said, brilliant explanation of the detail on this matter; and the disturbing aspect also alluded to by the noble Lord, Lord Clinton-Davis: the United Kingdom gives the impression of compliance and complicity in a matter that is wholly unlawful internationally and should be rejected by a country such as the United Kingdom, which prides itself on its continued adherence to the rule of law.

I think that I am allowed to say without offending anyone—because there are pluses and minuses in these long histories—that there have been questionable activities by the CIA throughout the world for many decades. We think of South America; we think of Indonesia many years ago; we think of aspects of CIA behaviour elsewhere. That is why we in this House and in the other place are grateful for the vigilance of the British and international press on those matters and the demand for the Americans to change their practices. The answers given by Condoleezza Rice were not answers at all. They were evasions of a true answer. That must be addressed again at the highest levels of the US Administration. That is causing
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massive concern not only in the United Kingdom but in the other member states of the European Union, especially those who feel that they are being illegally used without their governments knowing anything about it. That is an extraordinary state of affairs that must be dealt with.

I am glad that the "unlawful rendition" definition is dealt with in one subsection of the new clause, because the adjective itself allows the United Kingdom to make a first step in legal terms to cover itself from being complicit in acts of the United States that are totally illegal under international law. But that is only a first, small step, and more needs to be done. The only way that the United Kingdom can stay within both the international convention on human rights, especially on torture and the use of torture, and the European Convention on Human Rights is to excise and exorcise those practices and insist that our American allies and colleagues—so they are called; and if they are allies and colleagues in the true sense, they will respond to our overtures—outlaw those practices.

Although I am not an expert observer of the construction and definition of the wording, I am especially minded to be attracted by new subsection (5), which, if the new clause were enacted, allows officers to remove items from planes suspected of unlawful or illegal activities.

The noble Lord, Lord Clinton-Davis, may be correct that perhaps separate primary legislation should be considered, and Third Reading may provide further opportunities to discuss these matters. But, in the meantime, surely it is the duty of the Minister, who is well respected in this House for his very high standard of response, to give us some preliminary reassurances that the Government take this matter very seriously, particularly in view of the United States Government's inadequate explanation and the fact that the names of detainees have disappeared, other names have not been mentioned, and no one knows who these detainees are or where they are in the world. Are they in Guantanamo Bay or elsewhere? Are they in European countries? Have they been sent to Egypt or to other countries? There are rumours that they have been sent to Syria, which sounds extraordinary, bearing in mind the regular United States hostility towards that country. These matters must be dealt with, and I hope that the Minister will be able to give us some reassurances, at least on a holding basis, this evening.

9.15 pm

Lord Hylton: My Lords, I support the amendment. In company with many others in both Houses, I called into question and opposed the legal black hole created by the United States at Guantanamo Bay. I asked a good number of questions and had discussions with Ministers in the House on that whole subject, and it was satisfactory when eventually the British citizens were released from Guantanamo Bay. I note that they have not been charged with any offence in this country since their return.

Rendition is a far worse and more serious matter. It amounts to torture by third party, with absolutely no safeguards whatever. Therefore, in my view, the
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Government should not condone, deny or simply ignore CIA flights involved in such rendition. I urge the Government to reflect on the experience that this country and successive governments have had in Northern Ireland, where terrorism was eventually brought to an end not by internment or by subjecting individuals to hooding, white noise or stress positions, but by arresting and trying those suspected of terrorist acts and finding them guilty where there was proof. On all those grounds, I support my noble friend Lady D'Souza.

Lord Davies of Oldham: My Lords, we owe a debt of gratitude to the noble Baroness, Lady D'Souza, for re-introducing this topic, which occupied us for a short time in Committee in somewhat frenetic circumstances, as I think the House will recognise. My department was certainly living from hand to mouth when it came to getting information, which inevitably had to come from a number of sources and which in some respects was very difficult to obtain. We all know the reasons for that; there were many contentions, but very little that could be substantiated. So there was difficulty in replying in Committee, but we have moved on from that, and I want to respond as best I can to the points that have been made today.

I understand the concern expressed by the noble Lords, Lord Dykes and Lord Hylton, about these issues—a concern that was most graphically expressed by the noble Baroness, Lady D'Souza, when she referred to our repugnance for any activities involving torture in which we might inadvertently have been complicit. But this is not Foreign Office Question Time, so I am not here to answer Foreign Office policy in quite those terms. My task is to say whether this legislation, or an amendment to it, would improve the situation. In saying that, I resile in no way from the remarks I made in Committee—far from it. I share with all noble Lords the very great concern that I think the whole country feels about this issue.

The problem with the clause is that this legislation is concerned with aviation matters. Dealing with a clause which concerns how to deal with extraordinary rendition, or how we would dissuade allies and friendly powers, if they were engaged in such a thing, to desist, is not my business today. My business is whether this amendment would deal with the issue that has been identified, which is of concern to us all, and whether it applies to this legislation.

My contention is that, of course, there are aspects of work which the Government and the Department for Transport, which is the department on whose behalf I am replying today, can do with regard to aviation matters in order to allay some of the concerns expressed today. I doubt whether I will be able to allay every concern. I recognise that this issue will be raised in other fora with members of the Government in far more responsible and elevated positions than I, who will be able to reply on those general issues. But, on this Bill, the proposed new clause tabled by the noble Baroness will not work.
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Let me explain why. The reason why no action was taken against aircraft involved in unlawful renditions using UK facilities on the ground or travelling through our airspace is simply because there was no credible evidence that that had occurred. We did not have evidence which gave us cause to take action. That has been made clear in Ministerial Statements and PQ Answers. Since this Government came to power, they have authorised the use of UK facilities for two prisoner transfers to the United States where the prisoners were subsequently tried, and they were declined with regard to two other transfers where we did not think that the evidence stood up. It has been widely reported that specific US-registered aircraft, allegedly linked to the CIA, have used UK facilities for renditions. But we have no compelling evidence to suggest that those aircraft have been linked to unlawful activity while in or overflying the United Kingdom.

The Chicago Convention is clear on this. We certainly have the right to investigate an aircraft, but, of course, we have to have good grounds for doing so. If credible intelligence of serious illegal activity comes to light regarding an aircraft in flight, the Government can certainly require the aircraft to land. Article 3 bis of the Chicago Convention allows states to require aircraft to land if there are reasonable grounds to conclude that the aircraft is being used for any purpose that is inconsistent with the aims of the convention.

If the aircraft is on the ground the control authorities—police, Customs and immigration—have a variety of powers to enter, take evidence and make arrests. So, under the convention, we have the powers. The question addressed to us is why those powers were not exercised if there had been credible evidence that this was going on. We had no such evidence, which is why action was not taken. I am emphasising that subsection (1) of the proposed clause is unnecessary, because what subsection (1) would empower us to do, we already have the rights and powers to do. Moreover, it will be recognised that from the Prime Minister and down through all ranks of government it is clear that the Government are determined to act if evidence of such activity should ever arise.

The wider issue of the transportation by air of persons deprived of their liberty—

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