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Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend and I apologise that I was not here in time to participate in the earlier part of the debate. I have looked at the Chicago convention and I am not clear what is the difficulty about looking inside the plane and resolving the question. It would be a very simple operation. Article 16 does not appear to require anything like a vast amount of evidence. If there is any reason to doubt what is going on inside the plane, all you need to do is look.

Lord Davies of Oldham: My Lords, my noble and learned friend is assisting me in my argument. I accept that the Chicago convention does permit such action and therefore we do have the power to act, but of course we have to have credible evidence before we dare do so. My noble and learned friend will recognise
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that if in an arbitrary way we either forced an aircraft to land or investigated an aircraft on what was subsequently shown to be the flimsiest of evidence amounting almost to harassment and interference with other property, we would be open either to claims for compensation or the danger that the sovereign state so afflicted might carry out retaliatory activity on our own aircraft. That is why the evidence must be clear. I thank my noble and learned friend for his intervention and I hope he will accept that I am seeking to sustain the argument that the Chicago convention is helpful.

On the wider issue of the transportation by air of persons deprived of their liberty, it was addressed in the recent investigation and report made by the Secretary General of the Council of Europe. Her Majesty's Government provided a full response to his inquiry, including information on the powers we already have. It is available on the Council of Europe website. The Secretary General's report was issued on 1 March and acknowledges that the United Kingdom provided full answers to all the questions he had put. The Secretary General plans to make proposals, including a review of the current international legal framework for air traffic and the adequacy of safeguards to ensure that aircraft are not used for purposes incompatible with internationally recognised human rights standards. That is exactly the position of the British Government and we will work closely with the Council of Europe on its proposed review. Further, as we are dealing here with international law, any change is more appropriately made on a multilateral basis. So we would prefer to wait for the proposals that have been promised, and if it appears that changes are needed to the current arrangements, we will consider those in the appropriate international fora.

I return again to the fact that criticism of foreign governments is free and a part of our parliamentary obligations if we think they are acting in a way open to criticism. That is entirely right.

Baroness Williams of Crosby: My Lords, I thank the noble Lord for giving way. I confess that I am a little puzzled because it appears that Mr Ingram's reply to my right honourable friend Sir Menzies Campbell suggests that his department does have some evidence. He has said specifically that he knows that these particular aircraft did land at two RAF bases, RAF Northolt and RAF Brize Norton. In that light, will questions be raised about whether any more such flights by the United States and the CIA are planned?

Lord Davies of Oldham: My Lords, I shall turn to that in a moment because I want to reassure noble Lords that we have safeguards in place. First, I shall address the proposed new clause and then I hope to give reassurances on the more general issues which make up the burden of the debate for obvious reasons.

The clause envisages the simple practicality of forcing a plane to land. There is nothing simple about that. What kind of evidence would we have? If we had the evidence before the plane took off, we would signal that, and prevent use of British airspace. Is anyone seriously contending that, during the hours that the
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aircraft is in the air, the intelligence services will suddenly be privy to critical evidence that is sufficient for us to deploy aircraft to force down an airliner or whatever kind of aircraft it is? That is not a practicable proposition, but it is in the amendment.

Lord Garden: My Lords, it is not unreasonable to suggest that evidence can arrive at any stage. We already know that commercial aircraft flying to the United States may get turned back because intelligence comes about the nature of the passengers. Are we not signatories to the Tokyo convention? When we signed article 4, we must have conceived that it was possible that we might have to interfere with an aircraft as it transited through UK airspace, because it was necessary,

To say that this is impossible seems strange. Can the Minister explain how he reaches that conclusion?

Lord Davies of Oldham: My Lords, I am identifying that forcing an aircraft down is an extreme necessity, which will not be done on hearsay or generalised evidence but on the basis of a clear body of evidence that gives rise to the concern. All I am saying is that it is highly unlikely that such critical evidence will emerge in the space of a couple of hours during which an aircraft is in flight. Consequently, either we would signal that the aircraft was not to be permitted to enter British airspace long before the issue arose or—though it is scarcely credible—we would deploy force against an aircraft from a state that might be friendly or even neutral on the grounds that we had suspicions.

On the "Today" programme this morning, the noble Baroness, Lady D'Souza, addressed the question of whether an aircraft ought to be forced to land. She said that if it was slightly suspected that an unlawful rendition was taking place, the aircraft ought to be forced down. We would have to have a higher threshold than "slightly suspected". Forcing down an aircraft of another state is an extreme action and we could not warrant intervention of that kind without significant evidence. Were the aircraft from an unfriendly state, or a state prone to be unfriendly, retaliation might result. Were it from a friendly state, we would almost certainly be involved in significant compensation for such an action.

Lord Roper: My Lords, before the Minister leaves that point, would he not accept that, not too long ago, a significant number of British Airways aircraft which were due to fly to the United States were forbidden to take off because of intelligence that had arisen in relation to those who were boarding the aircraft? It does not therefore seem impossible that these sorts of things could occur.

Lord Davies of Oldham: My Lords, while, as I have indicated, we have powers, these apply before the aircraft have taken off. I am trying to address myself to the new clause, which says that we should have power to take action when the aircraft is airborne and
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in British airspace. All that I am indicating is that that is a pretty unrealistic scenario when we are considering serious evidence about a particular abuse.

Baroness Sharp of Guildford: My Lords, does the Minister accept that if we had intelligence of a terrorist raid of the type that hit on 9/11, the RAF would force the plane down? Are we not envisaging this?

Lord Davies of Oldham: We are, my Lords, if we have the intelligence. We have never denied that aeroplanes from the United States have flown in and out of the UK, some of them using RAF bases. That is well known and entirely normal. If it were suspected that illegalities were being carried out on such aircraft—that would apply to any state, not any particular state—we would need very serious and convincing evidence to force an aircraft down. That is a highly unlikely eventuality, given the nature of the evidence that would be necessary.

If the House will allow me to move on, I have a slightly more positive stance to take than the one I have had to adopt up to now. My task is to try to convince the noble Baroness, Lady D'Souza, not to press her amendment. The Government are seriously exercised about these issues. We have made it clear to the US authorities in recent months that we expect them to seek permission to render detainees via UK territory and air space, and that includes overseas territories. Secondly, we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. Thirdly, we have made it clear to the United States how we understand the UK's obligations under the UN convention against torture and the European Convention on Human Rights. We in turn are clear that the US would not render a detainee through UK territory or air space, including our overseas territories, without our permission.

My conclusion is this: of course I recognise the widespread concern about this issue—that has been evidenced in the debate. But the new clause would not serve a practical purpose. We have the powers to deal with aircraft if we need to. We can deal with aircraft on the ground if we suspect that a crime has been committed and is against national law. Any changes to international law that may be identified as desirable are best debated and resolved through international fora, not through UK law.

Of course I share the anxieties that have been expressed this evening. I hope the House will recognise that we have been forthright about this matter. We are satisfied that we have the powers to deal with it. We have also made it clear, in the one case in which we have expressed anxiety—namely, the allegations that the United States has been involved in this activity—just where we stand under our obligations under international law. If the United States proposed to use British air space or British facilities of any kind, it would have to seek our permission and we would seek reassurance that it was acting in accordance with international law.
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