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Lord Forsyth of Drumlean: Like the Minister, I am not a lawyer but my understanding of Pepper v Hart is that statements made at the Dispatch Box can be used subsequently in legal proceedings. I asked the question in respect of hybridity because the Minister is on record as saying that we are introducing this Bill with these wide powers in order to avoid the problem of hybridity. If Pepper v Hart applies to considerations of hybridity, and if I wanted to argue that the Bill was hybrid, I would point out that the Minister had told Parliament that he had made it this way in order to get round the problems of hybridity. That is rather like setting up tax-avoidance schemes with the express purpose of avoiding tax—something the Revenue tends to take as not being valid.

Lord Davies of Oldham: The noble Lord has been with us through many long hours, so he will recognise that I have all along argued for the Bill on two very obvious grounds. First, there are general purposes which apply for 12 months and will lapse. They are general because they apply to any conceivable institution in the event of an emergency which we do not anticipate and can therefore in no way, shape or form identify but merely make prudential legislation for. Secondly, there are the issues raised by Northern Rock. But because the Bill has these general objectives it is certainly not hybrid.

Lord De Mauley: I do not wish to detain your Lordships long. We have had a very useful debate and I am particularly grateful to the noble Lord, Lord Eatwell, for his useful suggestion and also to my noble and learned friend Lord Mayhew. My amendments were not only about Northern Rock but also about future nationalisations. We fear that nationalisation may become like a drug to the Government. Having said that, while reserving the right to come back to this on Report, I beg leave to withdraw my amendment.

Lord Davies of Oldham: I apologise to the noble Lord. I may be no lawyer but I am reasonably competent on parliamentary procedure. These debates started on my amendment and therefore it is I who should wind up the debate.

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Lord Davies of Oldham moved Amendment No. 18:

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Clause 13, as amended, agreed to.

Schedules 1 and 2 agreed to.

In the Title:

[Amendment No. 20 not moved.]

Title agreed to.

House resumed: Bill reported with amendments.



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Business

Baroness Royall of Blaisdon: My Lords, the Banking (Special Provisions) Bill will now be reprinted and distributed. Any amendments for Report may be tabled with the Public Bill Office. The deadline for tabling amendments will be put on the annunciator. The next piece of business will be the Statement on terrorist suspects, rendition, to be repeated by my noble friend Lord Malloch-Brown.

Earl Ferrers: My Lords, can I ask the Government Chief Whip to explain that? The Bill is now going to be reprinted for Report. When will that be held?

Baroness Royall of Blaisdon: My Lords, we expect Report to begin approximately 30 minutes after the end of the proceedings on the Statement.

Terrorism: Rendition

4.24 pm

The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): My Lords, with permission, I would like to repeat a Statement on US rendition operations made in the other place by my right honourable friend the Foreign Secretary. The Statement is as follows:

“On 12 December 2005, in response to a Parliamentary Question from the right honourable Member for North East Fife, the then Foreign Secretary, my right honourable friend the Member for Blackburn, updated the House on the subject of terrorist suspects (renditions) stating that:“This was supplemented by two further Statements in January 2006, and a subsequent letter of 6 February 2006 to the right honourable Member for Richmond.“In March 2007, the then Prime Minister Tony Blair gave an assurance to the Intelligence and Security Committee that he was satisfied that the US had at no time since 9/11 rendered an individual through the UK or our Overseas Territories. In its report on rendition, the ISC said:“The Government welcomed these conclusions in their response to the report published in July 2007. Parliamentary Answers, interviews and letters followed this evidence.“I am very sorry indeed to have to report to the House the need to correct these and other statements on the subject, on the basis of new information passed to officials on 15 February 2008 by the US Government.

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“Contrary to earlier explicit assurances that Diego Garcia had not been used for rendition flights, recent US investigations have now revealed two occasions, both in 2002, when this had in fact occurred. An error in the earlier US records search meant that these cases did not come to light. In both cases a US plane with a single detainee on board refuelled at the US facility in Diego Garcia. The detainees did not leave the plane, and the US Government have assured us that no US detainees have ever been held on Diego Garcia. US investigations show no record of any other rendition through Diego Garcia or any other Overseas Territory or through the UK itself since then.“Yesterday US and UK legal teams discussed the issue, and I spoke myself with Secretary Rice. We both agree that the mistakes made in these two cases are not acceptable, and she shares my deep regret that this information has only just come to light. She emphasised to me that the US Government came to us with this information quickly after they discovered it.“The House and the Government will share deep disappointment at this news, and about its late emergence. That disappointment is shared by our US allies. They recognise the absolute imperative for the British Government to provide accurate information to Parliament. I reaffirm the Government’s commitment to that imperative today. We fully accept that the US gave us its earlier assurances in good faith. We accepted those assurances, and indeed referred to them publicly, also in good faith.“For the avoidance of doubt, I have asked my officials to compile a list of all the flights where we have been alerted to concerns regarding rendition through the UK or our Overseas Territories. Once this is ready we will be sending this list to the US and seeking its specific assurance that none of these flights was used for rendition purposes.“Our counterterrorism relationship with the United States is vital to UK security. I am absolutely clear that there must and will continue to be the strongest possible intelligence and counterterrorism relationship with the US, consistent with UK law and our international obligations. As part of our close co-operation, there has long been a regular exchange with the US authorities, in which we have set out: first, that we expect them to seek permission to render detainees via UK territory and airspace, including Overseas Territories; secondly, that we will grant that permission only if we are satisfied that the rendition would accord with UK law and our international obligations; and, thirdly, how we understand our obligations under the UN Convention Against Torture.“Secretary Rice has underlined to me the firm US understanding that there will be no rendition through the UK, UK airspace or Overseas Territories without express British Government permission. “The House will want to know what has become of the two individuals in question. There is a limit to what I can say, but I can tell the House the following: the US Government have told us that

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neither of the men was a British national or a British resident. One is currently in Guantanamo Bay, and the other has been released. The House will know that the British Government’s long-standing position is that the detention facility at Guantanamo should be closed.“My officials and their US counterparts continue to work through all the details and implications of this information. We will keep procedures under review to ensure that they meet the standards we have set. I will, of course, keep the House updated”.

My Lords, that concludes the Statement.

4.30 pm

Baroness Neville-Jones: My Lords, I thank the noble Lord, Lord Malloch-Brown, for repeating the Statement made in the other place by the Foreign Secretary. I echo what my right honourable friend the shadow Foreign Secretary said, which was that, in coming to the House to inform us of this new information quickly after it had come to light, the Government acted very properly.

As the Minister recognised, this information will cause widespread concern, owing to the categorical nature of the assurances given by the Government previously. The assurances given in another place by the then Foreign Secretary, the right honourable Mr Jack Straw, to the right honourable Sir Menzies Campbell and to my colleague the shadow Foreign Secretary, and by Mr Blair to the Intelligence and Security Committee, have proved to be false, albeit that they were given in good faith. More worrying still, this means that the specific assurances about the use of facilities at Diego Garcia given in a series of Answers to Questions from my noble friend Lord Ashcroft turned out to be false. In July last year, the Minister said:

It is of course much better that this new information is revealed now than that it continues to be concealed, but it raises a number of serious questions, which I will list. How confident are the Government that further cases of this nature will not come to light? How exhaustive has the checking of records by the US now been? Can the Minister say any more about exactly how this omission occurred and whether the US has made any administrative changes to ensure that any other cases will now come to light?

The noble Lord said that the Government will now compile a list of all previous flights that have alerted concerns and will pursue them with the US authorities. From this side of the House, I can say that we strongly approve. We hope that in compiling the list the Government will take account of the investigations undertaken by a number of outside organisations, such as Liberty, of possible cases of extraordinary rendition. These cases, of course, include not just flights transiting the Indian Ocean but also the use of UK domestic airspace. The rumours abound and need to be quieted. On these Benches, we trust that, whatever

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the outcome of their investigations, which we hope will be conducted as speedily as is consistent with thoroughness, the Government will report fully to the House. The investigation conducted last June by the Association of Chief Police Officers on behalf of the Government, which resulted in a nil return, was evidently not exhaustive.

Will the Government also impress on the US Administration the importance of ensuring that all agencies of the US Government, not just the State Department, understand the importance of respecting the rules that the Minister has reiterated relating to UK law and practice? Can he assure the House that, if any further concerns are raised, he will pursue them immediately with the US on a systematic basis, rather than as a one-off exercise?

In the light of what has happened, does the Minister expect procedures for the future to be tightened up or reinforced in any way? Again, this might involve changes in internal procedures in the US so that the British Government can be confident that the American Administration would indeed make a formal request, when appropriate, for use of our airspace or facilities. It would be good for any new arrangements to be reported to the House. The delay in releasing this information and the evident absence of a request in these cases are bound to undermine public trust in the arrangements that we have with the United States. Is it not important to do everything possible to strengthen the credibility of such arrangements for the future?

I think that I reflect the feeling of this House when I say that extraordinary rendition is a subject that makes us feel very uneasy. If there is more to come out of the closet, it would be better for trust and confidence that it should emerge as the result of government investigation rather than in—if I may put it this way—more informal ways.

Whatever the specifics of these two instances, their revelation inevitably focuses attention again on the wider issue of how rendition is used. As we on this side of the House have said in the past, extraordinary rendition raises the risk of losing control over the conditions under which a rendered suspect is then held—and possibly tortured—in a third country. This danger is not necessarily just history. Recent reports of secret prisons in Afghanistan in which terrorist suspects are held are grounds for concern. If such reports turned out to have substance, given our close support for the Afghan Government, there would be a risk to the good name of this country. Have the Government been able to substantiate or refute these allegations?

The efforts of the US, our most important ally, to fight international terror are essential to the security not only of America but of Britain and many other nations. We agree entirely with the Government on that point. However, allegations that rendition has led to the torture of terrorist suspects have been used to undermine the moral standing of the United States and its allies. Indeed, such torture, if it has occurred, is fundamentally wrong. The Government take the view, which we share, that rendition leading to torture is unacceptable and have said that they would not

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approve of any instance of rendition that breached this country’s obligation under the UN Convention Against Torture.

I have to say that the position of the US and all its allies would be strengthened if they were to adopt a definition of torture that corresponded more closely to international norms and if they adopted a higher threshold for rendition to third countries than satisfying themselves that they believed that the transferred suspect would not be tortured. As my right honourable friend the shadow Foreign Secretary asked in another place, is this not something that the Government should now advocate to America as its candid friend? Such differences of practice and definition are at the root of international concern and their satisfactory resolution would mean that, rather than permanent suspicion and occasional revelations, real trust—a most important commodity—might be restored for the future. Like, I am sure, others on all sides of the House, I look forward with great interest to the noble Lord’s responses to these important questions.

4.38 pm

Lord Thomas of Gresford: My Lords, we should define our terms. Extraordinary rendition means,

On 26 December 2002, it was reported in the Washington Post that the United States authorities were using Diego Garcia not merely for the transit of prisoners from one state to another but for their incarceration. The matter was raised on the Floors of both Houses and denied by the Government. We did not believe them then and we do not believe them now. We have increasingly put pressure on the Government to make the necessary inquiries to assure us that these practices are not continuing.

In December 2005, as the Statement says, the matter was raised by my right honourable friend Sir Menzies Campbell in another place and an assurance was given that there had been careful research by officials, who could not identify any occasion when there had been a request by the United States for permission for rendition through United Kingdom territory or airspace. On that day, the then Foreign Secretary, Mr Jack Straw, told the “Today” programme that he knew that 180 charter flights and 210 private jets operated by the CIA had passed through our airspace and had used British airports for that purpose. Again, there was a denial that that was anything to do with extraordinary rendition.

Last June, the Council of Europe published a report that concluded that the CIA ran secret detention centres in Europe throughout 2003-05, in particular in Poland and Romania, where detainees were subjected to interrogation techniques tantamount to torture. Similarly, the Council of Europe concluded that Diego Garcia was playing a major role in a worldwide CIA prison network, both as a black site and as a transit point. That brings us to last June. At every stage, the Government have denied that there

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has been any misuse of the facilities provided by this country or our overseas territories.

Today, the Minister says that he has asked his officials to compile a list of all the flights where we have been alerted to concerns regarding rendition through the United Kingdom or our overseas territories. The list is then to be sent to the United States and specific assurances are now, years after the Washington Post article in 2002, being sought that none of the flights was used for rendition purposes.

One has to wonder whether the statements made to Parliament were based on inquiries made of the US authorities at the time that they were made. As was just said, the noble Lord, Lord Malloch-Brown, stated that the US authorities had repeatedly given us assurances that no terrorist suspects had been or were being held on Diego Garcia. How can we trust this Administration any more? Is this just some error by an official in relation to two flights back in 2002? Are we not going to hear in future years, “Oh well, we forgot about other flights”?

By chance, last night I happened to see a film that showed Barney, President Bush’s dog, in the grounds of the White House, lying on his back and having his stomach tickled. That is similar to the way in which this Government have behaved in relation to the United States. Yesterday, we were discussing the one-sided extradition that has been agreed between the United States and this country. We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter.

4.45 pm

Lord Malloch-Brown: My Lords, very important questions and issues have been raised in the two interventions that we have just heard. I think that we must accept that US assurances were given in good faith. They have proved false in the case of the omission of the two transfers through Diego Garcia in 2002, but I urge this House not to assume from this disappointing lapse that our most important ally is not to be trusted in a broader sense. The most compelling defence of the good intentions of the United States is that it volunteered this finding to us; there was no investigative journalist close to another exposé in the Washington Post, as far as we know. This was volunteered to us at the highest level on the ground that it was understood in Washington, as much as it would be here, that misleading Parliament is a major breach of parliamentary and democratic government, which must be corrected as quickly as possible. As the Statement made clear, there is as much remorse and concern on the part of Secretary Rice and her colleagues in Washington as there is on my part, on the part of the Foreign Secretary and on the part of this Government.



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As regards my own assurances in July, since 2003, and therefore after the Washington Post article,we have received regular assurances from the United States that Diego Garcia has not been used in any form for renditions. I will come back to the other steps that have been taken since then but, on the question of how confident we can be of the assurances that we have now received, I think that we must trust but verify. I accept the point that we cannot afford any longer to take them at face value—hence the Foreign Secretary’s decision to submit a list of suspicious flights, drawn from those identified by Liberty, Amnesty International and other inquiries. We will send as full a list as possible and make that list public, so that if people feel that flights have been omitted they can make their point. This will be a transparent process. We feel that we have every right to ask of the United States that it confirms to us that each and every one of these flights has not been used for rendition; it owes us that after what has happened.


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