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Lord Garden: My Lords, I support the amendment, which is also in my name. Having made the case in Grand Committee and on Report, I can speak briefly. Indeed, the arguments of the proposers have not varied at any stage; the reasons the Minister has given for resisting the amendment have changed radically. We were first told, in Grand Committee, that the amendment would abrogate our international obligations and hence wreck the Bill. On Report, the Minister accepted that this was incorrect and said that:

We have subsequently sought, as other noble Lords have said, to find some examples where the current legislation has led to the investigation of suspicious flights—those which might be expected to be involved in the transport of people who would subsequently be interrogated under torture. No examples of our using this legislation have come to light, although we have a widespread and growing weight of evidence that the practice has been carried out for a number of years. The noble and learned Lord, Lord Archer of Sandwell, gave some of those examples.
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We have also sought to find out the status of civil aircraft chartered by governments for the purposes of rendition. This also remains unclear. Last time we discussed this, I asked how RAF Northolt could be used as a staging post for these aircraft without prior notification of the purpose and status of these flights. Again, we have heard no answers to these questions.

From all sides of the House, including the government Front Bench, we have heard statements of total abhorrence of the practice of extraordinary rendition. We have the opportunity, through this amendment, to clarify and systemise the legal obligations, because they are obviously not clear to the authorities. I hope that the Government will, at this eleventh hour, support this amendment, and that all noble Lords will see that we need to do this if we are to stop the practice of extraordinary rendition through Britain.

Lord Campbell of Alloway: My Lords, I ask the indulgence of the House, not having spoken before on this amendment, which only came to my notice on the morning of Report stage, when I could not attend. I declare an interest as a member of the Joint Committee on Human Rights but, of course, speak only for myself.

Extraordinary rendition is a term of art not known to public international law, as the purpose is interrogation under torture. This amendment does not foreclose upon this practice as such in our domestic law, which as yet recognises the defence of lawful authority, justification or excuse to a charge of torture. One hopes that it may soon be amended, albeit that this process is proscribed by the United Nations Convention against Torture, to which as yet the Government have declined to accept the right of individual petition.

The narrative of events as already spoken to in Committee and on Report, which is not for me to report or rehearse, has not been accepted by the DCA, the MoD, the Home Office or any other department of state as far as I am aware. So is it not a reasonable assumption that, in the wake of 9/11, this arrangement for extraordinary rendition was made between President Bush and the right honourable gentleman, our own Prime Minister, and that it was implemented by the intelligence services under the shield of joint national security? If not, how else is it that no department of state accepts cognisance of what we know is going on? Has not the time come to shift that shield, without disclosing sources, and to provide, as is proposed by this amendment or in some similar amendment, that the Secretary of State should be answerable to Parliament?

It is now common ground, having read Hansard, that under the Chicago convention, control of the aircraft is exercised by the Civil Aviation Authority on clearance for landing and take-off, and when the aircraft is grounded, it is subject to the provisions of the Chicago convention. It is assumed that the Civil Aviation Authority, under the practice spoken to in Committee and on Report, is given directions. Who gives those directions? How is the clearance arranged?
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Who knows about what is going on? Those are questions that the Minister is in no position to answer. But we as ordinary people are entitled to ask them. If airports are cleared for this purpose, who gives the instructions? Who is it who knows? If no department of state accepts cognisance, there is no control but Parliament. It is assumed that under this amendment those instructions would be given by the Secretary of State, that passenger lists would be checked, and that the ultimate destination and the purpose of the flight would be verified. But nothing like that appears to happen today.

The Joint Committee on Human Rights has this amendment and is working on extraordinary rendition. As yet, however, it has received no evidence or any information to dispel my anxiety. I cannot speak for anyone else. However, I can say that there is much more work to be done and it shall be done. The report, which may not be presented at the moment, will be available before the Bill, when returned to another place, receives attention. It will be for another place to consider whether this amendment qualifies as a connected purpose related to the control of the Civil Aviation Authority under the Chicago convention. That is the matter which I would have touched upon the other day but I got it wrong.

In conclusion, perhaps I may suggest in these exceptional circumstances that we borrow the concept that,

and that the Minister, having recorded his objection, as inevitably he will do when the Question is put tonight, by concession allows the "Contents" to have it. That has happened once in my experience; I need not go into the details. I ask that to enable the report of the Joint Committee on Human Rights to be considered in one of the Houses of Parliament, having regard in particular to the provisions of subsection (4)(c) of the amendment. I know that that is a tall request but I ask it with humility and sincerity.

7.45 pm

Lord Dykes: My Lords, I strongly supported Amendment No. 22 tabled by the noble Baroness, Lady D'Souza, on Report on 8 March. Many speakers in this debate have thanked her for her initiative in launching this new clause at Third Reading. I shall be brief, because the hour is late. It is clear that the Minister must provide some strong answers to the many queries that have been raised and to the legal points raised by the noble and learned Lord, Lord Archer of Sandwell, who was formerly Solicitor-General in another place. I shall not make any further points tonight, because of the lateness of the hour, but I shall say that we know that the reality is that if one discretely asks any important, reputable journalists from the media—the press, radio or TV—in leading countries, particularly leading EU countries or America, about these practices and whether they go on, at the least they would say that they are pretty sure that they do, or otherwise they say that they are certain that they are going on. The Government must not be a party to illegal actions by the CIA or any other
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American entity of that kind. Therefore, we beg the Minister to give convincing answers tonight before this debate is concluded.

Lord Lamont of Lerwick: My Lords, I support the noble Baroness, Lady D'Souza, and I am grateful to her for bringing this matter forward again. I was not able to be present on the previous occasion when this was debated, although I read the Minister's reply. On that occasion, the Minister suggested that the issues could not be dealt with by an amendment because they went beyond the scope of the Bill and that we were bound by international conventions. However, as has been pointed out tonight, a state does not need to rely on any treaty in relation to its jurisdiction over foreign civil aircraft, whether on the ground or in the air. It has the right to investigate whether an unlawful activity is being carried out on the ground or in its airspace.

I can, to some extent, anticipate what the Minister will say. We will be told that it is inappropriate to agree such a far-reaching amendment; that it is not to do with the content of the Bill; that it will be inappropriate; that it will sit uneasily in the Bill; and that it will probably be full of practical difficulties. Looking at this issue, which is of huge importance, even if the Minister does resort to those arguments, and even if I were convinced by them, I would still vote for the amendment because of the gravity and seriousness of the issue that has been raised. It cannot be denied that extraordinary rendition—to distinguish it from "rendition", which is the rather hideous distinction that is made—is happening and is being practised.

The three cases that the noble and learned Lord, Lord Archer, quoted are the ones that I would have picked of the cases that are public knowledge. What is significant about those three cases is that the three governments of the territories where the people were captured were all conducting investigations into them. In the instance in Italy where an Egyptian was seized on the streets of Milan, as the noble and learned Lord said, warrants have been issued for the arrest of several CIA agents; in the case of the German who was captured in Macedonia and then taken to Afghanistan, the German Government are investigating that; and in the case of the Canadian, who was taken first to Jordan, then to Syria and then back to Canada with no charges being levied against him, the Canadian Government are conducting an investigation into that, in which the United States Government have refused to participate.

That very strongly suggests that extraordinary rendition is occurring. Perhaps the Minister would answer this one question for me. It is a rather unfair question for his portfolio. But, if the transfer of those people was not for the purpose of torture, for what reason could it have been? Why take someone from Macedonia to Afghanistan or from Milan to Egypt in order to interrogate him? What purpose other than exercising undue force on people could there be for these interrogations? The evidence that something undesirable is going on is strongly suggestive.
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I would not agree with the suggestion of the noble Lord, Lord Campbell, that perhaps there was some agreement between the President and the Prime Minister. I would not accuse the Government of that. But I feel that the Government are turning a blind eye. They are not asking enough questions about what is going on. There is plenty of evidence, as was said by the noble Lord, Lord Garden, of CIA flights in and out of this country. Putting that aside, there are the cases referred to by the noble and learned Lord, Lord Archer. The Government have to give a fuller answer and demonstrate that they are taking some precautions in order to ensure that this country is not being directly or indirectly involved in this.

I accept the assurance of the Foreign Secretary that—

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