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Lord Clinton-Davis: My Lords, my noble friend has been very frank, but I am concerned about the situation. He said that if there was another emergency, Britain would act unilaterally. I propose that a spur should be given to the negotiations at ICAO. I also indicated that we should not act immediately but that the legislation should provide that we are at liberty to do so. Presumably, my noble friend disagrees with that.
Lord Davies of Oldham: My Lords, I disagree because the legislation is about the long term. We expect primary legislation to obtain over a number of years. The temporary measure that we took after 2001 might have to be repeated if a tragedy similar to that should occur again, in which case I undertake that the Government will recognise that there can be an uninsurable problem for the aviation industry. We are making it clear that we intend to sustain that industry through such an acute, particular and precise difficulty, but when it comes to the law, aviation will be subject to international treaty and agreement. That is the only way. Britain acting alone through its own legislation is not the answer.
Lord Hanningfield: My Lords, one good thing about the amendment is that I have been able to work with the noble Lord, Lord Clinton-Davis, with all his
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experience of aviation matters. Again, as I expected, I am disappointed by the Minister's answer. I am grateful, as I am sure others will be, for the Government's guarantee to intervene if the system is collapsing. That is an important commitment.
We wanted the Government to take some initiative. We agree that there have to be international treaties. However, even the maritime treaties are not signed by everyone. We have had debate in the House. Half the countries have not signed up to the maritime treaties. We seek to encourage others to sign. We still want to work towards international treaties, but we could have made some start. I disagree with the Minister that we could not have done so.
"AIRCRAFT INVOLVED IN ACTS OF RENDITION
(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, has been or may be used for an act of unlawful rendition;
(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;
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(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, the amendment would ensure that the UK could not in the future be in any way involved in the practice of extraordinary or unlawful rendition. There are no new arguments at this stage. I merely want to summarise and answer the Minister's response on Report.
I am very grateful to the Minister for a generous meeting earlier this week. He agreed on Report that there were no legal obstacles to stopping and searching aircraft suspected of being involved in unlawful rendition and that in fact the relevant conventions place a positive duty on governments to do so. He also said that adequate provisions already existed and that agreement had been reached with the US whereby it,
The Minister was asked in writing by myself and the noble Baroness, Lady Williams of Crosby, to point us in the direction of the existing legislation, to say when and where it had been used and to what effect, and to provide any formal or public statement of the agreement reached with the US on this matter. Had there been satisfactory answers to those questions I would certainly not have moved the amendment for the third time at Third Reading, but unfortunately there are no answers to what appear to me to be perfectly legitimate queries.
The Minister says that the ordinary police powers cover the searching of aircraft, but has no instances in which those have ever been used. He repeats that there is no credible evidence that the UK has ever been involved in facilitating extraordinary rendition. But the law requires only "reasonable suspicion", and I believe that that is fully justified by the evidence from around the world that this odious practice has undoubtedly taken, and is taking, place.
The Minister quotes from a speech recently made by the Foreign Secretary, Jack Straw, in which assurances from the US have been sought and met. I respectfully submit that these words are not sufficient and do not reassure me. Nor do they convince me that there is any new agreement with the US or firm intention to ensure that the UK has made it abundantly clear that it will never condone any aspect of unlawful rendition.
Here I must at least mention the report of the Vienna Commission which was published after Report stage. This body was set up by the Council of Europe specifically to examine the legal obligations of member states with regard to interstate transport of prisoners and secret detention centres. The findings by six independent legal experts are unequivocal. I quote three short sentences from this document. It states that,
I do not think that the response we have had so far from the Government will give the public confidence that there are adequate procedures to pre-empt any future involvement in extraordinary rendition. Therefore, I beg to move.
Lord Archer of Sandwell: My Lords, my noble friend has pursued this matter assiduously through successive stages of the Bill. She has argued it, if I may be allowed to say so, with compelling advocacy. I would not presume to seek to embellish what she said.
I regret that for a succession of reasons I was not able to participate at earlier stages. I intervene now to address two issues raised by my noble friend the Minister. First, referring to aircraft which are on the ground either to take advantage of airport facilities or because they have been required to land, he said that the amendment is unnecessary because the authoritiespresumably the police and Revenue officialsalready have power to enter the aircraft and ascertain the purpose for which it is being used. My noble friend did not specify the powers. I make no complaint of that. Like my noble friend Lady D'Souza, I am grateful for the time the Minister spent with us yesterday. However, I have had to speculate to what powers he was referring. I think that there was a reference at some point to the Police and Criminal Evidence Act 1984. Since it was not clear to which provision in the Act he was referring, I have had to make such searches as I can.
I accept that by Section 23, "premises" includes aircraft, so we can begin by agreeing on that. I was able to find three provisions in the statute to enter and search premises. Section 1 gives a constable power to search if he has reasonable grounds for suspecting that he will find stolen or prohibited goods. Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence, there is material there which is likely to be of substantial value to the investigation, and it will provide relevant evidence. Section 17 gives power to enter premises for certain purposes, the major one being the purpose of making an arrest.
None of those provisions appears to address the purpose we are discussing today. To put it at its lowest, it is not difficult to envisage circumstances where a plane is being used for extraordinary rendition where none of those provisions applies. Unless my noble friend knows of other powers which may solve the problem, there seems to be a need for subsection (3) of my noble friend's new clause. I should add that all those powers require "reasonable grounds for suspicion".
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The difficulty we face is that the officials may not be able to demonstrate grounds for suspicion of a particular aircraft. Aircraft are not transparent. The suspicion may apply to a category of aircraft which may be a fairly limited one. It is unlikely to entail a large-scale operation. The situation is most likely to arise in connection with state aircraft, and in the Chicago convention that expression includes aircraft in military, customs and police services. Under Article 3 of the convention, no state aircraft is entitled to fly over the territory of another state or land on such territory without authorisation by special agreement or otherwise. That may help to answer the question asked by my noble friend and the noble Baroness, Lady Williams of Crosby.
That authorisation is unlikely to be granted if the authorities in this country are not aware who the operators of the aircraft are. It is basically where the operators transpire to be certain police or intelligence agencies ornot to be too mealy mouthedthe CIA or the FBI. I suggest that even if nothing further is known about the journey in question, there is reason for further inquiry. I shall return to the reason for that. Within that category, some aircraft will be eliminated quite simply. Those remaining are not likely to entail a massive operation to enter and search them.
My noble friend the Minister is concerned that a search may cause delaythat was his second issue. But a state aircraft will require authorisation in order to land, or it will have been required to land. If that authority or requirement is made, what is the difficulty in arranging for an official to be available when it lands? If such an official is available, what delay or inconvenience will be occasioned by his entering the aircraft and seeing who or what is there?
My noble friend's amendment does not seek to make a search compulsory. It would simply empower the Secretary of State, or other responsible official, to conduct a search if there is intelligence leading him to consider that a search should be conducted. The intelligence will surely need to be considered in the context of what is known about the previous activities of the operators. If a criminal jury is now to be entitled to take account of previous convictions, surely officials should assess the situation in the light of the operator's record in so serious a matter as we are discussing.
Perhaps I may refer to three instances. None of them has been the subject of a trial in a court of law, but that is the decision of the American authorities. The United States has not ratified the statute of the ICC, and they have not been prosecuted in the American jurisdiction, which is where they would otherwise be prosecuted.
In September 2002, Canadian officials authorised the removal to Syria of a Syrian-born Canadian citizen, Maher Arar. While in transit at John F Kennedy Airport, he was taken into custody by FBI officials. He alleges that he was shackled. His request to see a lawyer was refused on the grounds that, since he was not an American citizen, he did not
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have the rights of an American citizen. He asked to be sent to Canada, since he was Canadian, but that request was refused. He was then put on an aircraft and taken to Amman in Jordan, and from there to Syria, where he was detained for 10 months, beaten and tortured. He has never been charged with an offence. The Canadian Government have established an inquiry into the case, but the United States Government have declined to participate.
Secondly, in September 2003, Khalid al-Masri, a German citizen, was kidnapped in Macedonia. He was flown to a United States prison facility in Afghanistan, where he was detained for four months, allegedly beaten, and then dumped at the roadside. The United States authorities have neither confirmed nor denied those allegations. The American Civil Liberties Union has now launched a lawsuit against the CIA.
Thirdly, Mustafa Nasr was kidnapped by the CIA in Milan, where he was a resident. He was taken to the US military base at Ramstein in Germany, and from there to Egypt, where he claims he was tortured. In December 2005, European arrest warrants for those allegations were issued against 22 CIA operatives. As my noble friend has said, investigations are going on in Europe.
I understand that the searches contemplated by my noble friend will not be easy. Feathers may be ruffled, at least in the early stages, and we are all concerned with what has been called the comity of nations. But we are discussing a risk of people being taken to where they may be tortured. That concern is, on any showing, not a fanciful one. If there are problems, a serious attempt is required to address them. This amendment would ensure that there is the power to do that.
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