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These amendments would require that, prior to extradition being deferred, the judge or the Secretary of State must consider whether any of the statutory bars to extradition apply. The thinking behind the amendments appears to be, as I understand it, that if on the facts of the case there is an obvious bar to extradition, this matter should be considered prior to deferral so that the criminal in question does not have the extradition proceedings hanging over his head while serving his United Kingdom sentence. While I can see the thinking behind this amendment, I resist it on three grounds: first, the terms of the Act make it unnecessary; secondly, the mischief the amendment is targeted at does not on closer scrutiny exist; and, thirdly, it would result in an unnecessary burden being placed on the extradition system.

I shall deal first with necessity. It is important to note that if a person is serving a sentence of imprisonment in the United Kingdom, the Extradition Act makes it clear that whether or not extradition proceedings will

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be deferred is a matter for the discretion of the decision-maker. This means that the judge or the Secretary of State can look at all the facts of the case and decide whether in fact the proceedings should be deferred. This means in practice that in the rare case where an obvious bar to extradition is engaged, the subject of the extradition request would be able to trumpet this fact in arguing that the proceedings ought to be determined right away rather than deferred. There is, accordingly, scope within the legislative framework on deferral for the issues raised by these amendments to be fully and, I respectfully suggest, appropriately considered. That is why we do not believe that the amendments are necessary.

As to the mischief at which the amendments seem to be targeted, I contest the notion that it is really that much of a hardship for someone serving a criminal sentence properly imposed by a United Kingdom court to know that at the end of a sentence they will be required to face extradition proceedings. The Extradition Act contains a wide range of safeguards which ensure that no one will be extradited from the United Kingdom without due process being observed and guarantees in particular that extradition will never take place where it would give rise to a breach of the European Convention on Human Rights. Your Lordships know that our courts are very jealous about their observance of those provisions. This is an important point to make, as it means that no one serving a domestic sentence and who is the subject of adjourned extradition proceedings need have any concern that they have the prospect of treatment contrary to the Human Rights Act 1998 hanging over them once the proceedings restart.

5.30 pm

My final observation on the amendments is that they would in most cases require the statutory bars to extradition to be considered twice-once prior to deferral of the proceedings and once again when those proceedings eventually resume. Given that the resources of our extradition system are already stretched, this, with the greatest respect to the noble Lord, Lord Thomas of Gresford, is unjustifiable. It simply does not, in our view, make sense for issues to be determined on a provisional basis well in advance of the potential date for extradition and then be considered for a second time at the point of extradition, by when those factors may well have changed.

I understand why the noble Lord raises this issue, but I hope that he will say that his amendment was probing, he has had satisfaction and that we can happily put the issue to one side.

Lord Thomas of Gresford: Has a judge ever considered bars to extradition on an application by a defendant prior to adjourning the warrant? Are there any examples of that? That was the noble and learned Baroness's first reason. Her second was that it cannot really worry someone who is properly sent to prison that he might be extradited at the end of his sentence. That comment does not touch common humanity. Thirdly, she said that there would be a double hearing on the bars to extradition. Our proposals are that they should be dealt with once and for all at the time that the request is made, whereby, instead of adjourning the

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request, the judge would say, "There's an obvious bar to extradition here and I am putting an end to it". As I said in my opening remarks, there is no reason whatever why the requesting country in the years that pass-say, two or three years later at the end of the sentence-should not renew the request if it wishes to. The bars to extradition can be examined at that time.

Baroness Scotland of Asthal: My Lords, on the noble Lord's first question, the issue is whether the court has capacity to make those considerations, which it does. I have made it plain that the current structure enables the judge to look at that issue right at the beginning, that the ECHR is there to cover the middle and the end, and that the process which has worked well is that final consideration of extradition should be made once the United Kingdom's jurisdiction has been exercised. I still say that the noble Lord's amendments are unnecessary and, therefore, invite him to withdraw or not move them.

Lord Thomas of Gresford: My Lords, I shall certainly do that in a moment and consider what the noble and learned Baroness said about them. One thing that has emerged is that she has pointed the way for a defendant who is the subject of an extradition request to make his application to put the bars before the court at the beginning, rather than the end, of his sentence. I hope that practitioners will take note of that and use it. I beg leave to withdraw the amendment.

Amendment 152AKAD withdrawn.

Clause 67 agreed.

Clause 68 : Extradition to category 2 territory

Amendment 152AKAE not moved.

Clause 68 agreed.

Clause 69 : Person charged with offence or serving sentence of imprisonment

Amendments 152AKAF to 152AKAP not moved.

Clause 69 agreed.

Clauses 70 and 71 agreed.

Clause 72 : Return to extraditing territory etc

Amendment 152AKB

Moved by The Earl of Onslow

152AKB: Clause 72, page 90, line 3, leave out from first "the" to "with" in line 4 and insert "return is not compatible"

The Earl of Onslow: My Lords, this amendment arises from the Joint Committee on Human Rights. The Bill states:

"Nothing in section 153A or 153C requires the return of a person to a territory in a case in which the Secretary of State is not satisfied that the return is compatible with the Convention rights within the meaning of the Human Rights Act 1998".

We have suggested that the sentence should simply state that,

In other words, it is not a question of the Secretary of State being satisfied, just that the return itself is not satisfactory. This is simpler, better and less open to discretion and doubt. I beg to move.

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Baroness Scotland of Asthal: My Lords, while I understand the aspiration behind the amendment of the noble Earl, Lord Onslow, and what he is trying to achieve, I will resist it on the basis that the provisions of Clause 72 already provide sufficient safeguards to ensure that the return of an individual pursuant to an undertaking is compatible with the person's fundamental rights. I heard the noble Earl say that there may be some lack of clarity on this issue. I assure him that it does not appear to have caused any difficulty to date and is working relatively clearly and very well.

As the clause is drafted, the Home Secretary must refuse to return someone pursuant to an undertaking if their surrender would be incompatible with a person's human rights or their rights under the refugee convention. The European Convention on Human Rights reflects a clear duty imposed on all public authorities by Section 6 of the Human Rights Act 1998. The purpose of new Section 153D, to be inserted by Clause 72, is to make it absolutely plain that where the Secretary of State reaches the conclusion that to return someone pursuant to an undertaking would be in breach of his duty under the Human Rights Act or the refugee convention, nothing in the preceding provisions of Clause 72 requires him to act in breach of that duty. If the Secretary of State decided to return someone, but as a matter of law that decision would breach the ECHR or the refugee convention, his decision would be unlawful and could successfully be challenged by way of judicial review.

I can categorically assure the noble Earl that nothing in new Section 153D seeks to suggest that the decision as to whether return would breach a person's human rights is a matter for the Minister's discretion. Whether or not return would breach the ECHR is a question of law and would be reviewed by the courts on that basis. I understand the anxiety of noble Earl, Lord Onslow, but I hope that I have been able to assure him that his concern about the discretion is not well-founded. We were alive to the problem and have sought to apply the salve before it was requested-confident, as we always are, that he would notice if we had failed in our duty.

The Earl of Onslow: I love being flattered by the noble and learned Baroness-it is very egoistic. I am grateful for what she said and of course I accept it absolutely. I still think that the matter would possibly have been slightly clearer and more concise with our suggested wording but, having listened to what she said, I beg leave to withdraw the amendment.

Amendment 152AKB withdrawn.

Amendment 152AKC

Tabled by The Earl of Onslow

152AKC: Clause 72, page 90, line 4, after "with" insert "human rights, including"

The Earl of Onslow: My Lords, due to what the noble and learned Baroness said on the previous amendment, I do not think that there is any great point in my moving this group of amendments.

Amendment 152AKC not moved.

Amendments 152AKD and 152AKE not moved.

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Clause 72 agreed.

Clauses 73 and 74 agreed.

Amendment 152AKF

Moved by Lord Thomas of Gresford

152AKF: Before Clause 75, insert the following new Clause-

"Unlawful rendition and searching of aircraft

After section 24B of the Aviation Security Act 1982 (c. 36) insert-

"24C Police powers to search aeroplanes

(1) If the Secretary of State has reason to believe that an aircraft that is in flight over the United Kingdom is or has recently been or may be involved in an act of unlawful rendition then he or she may require the aircraft to land at a suitable aerodrome.

(2) If an aircraft is required to land in accordance with subsection (1), a responsible person must, as soon as practicable after the aircraft has landed, enter and search the aircraft.

(3) The Secretary of State or a responsible person must enter and search an aircraft if he or she has reason to believe that-

(a) an aircraft in an aerodrome is or has recently been or may be involved in an act of unlawful rendition; or

(b) in respect of an aircraft in an aerodrome, incomplete or incorrect information under sections 32 and 33 of the Immigration, Asylum and Nationality Act 2006 has been supplied.

(4) For the purposes of subsections (2) and (3), a search of an aircraft is to be carried out to determine if-

(a) the aircraft has recently been, or may be, involved in an act of unlawful rendition;

(b) a criminal offence has been committed; or

(c) allowing the aircraft to continue on its journey could place the United Kingdom in breach of its obligations under the European Convention on Human Rights,

but these powers may only be exercised when it is not reasonably practicable to apply for a warrant of entry in accordance with section 8 of the Police and Criminal Evidence Act 1984.

(5) A person who carries out a search under this section may remove any items from the aircraft if it may be evidence of any of the matters set out in subsection (4).

(6) In this section-

"an act of unlawful rendition" means an act, not being in accordance with formal lawful extradition or deportation procedures, involving the forcible transportation of a person to a territory where he or she may be subjected to torture and inhuman and degrading treatment;

"a responsible person" means-

(a) the chief officer of police of a police force maintained for a police area in England and Wales;

(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967;

(c) Chief Constable of the Police Service of Northern Ireland;

(d) one of the Commissioners for HM Revenue and Customs;

(e) a constable designated by any of the persons specified in paragraphs (a) to (c).""

Lord Thomas of Gresford: My Lords, this amendment is proposed by Liberty and its purpose is to introduce a new clause into the Bill to amend the Aviation Security Act 1982 that would bring new powers to direct a plane to land and to search that plane and any other plane already in the United Kingdom if there was reason to believe that the aircraft had been, or might have been, involved in unlawful rendition.

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Amendments similar to this proposal were tabled to the Civil Aviation Bill and the Police and Justice Bill in 2006 but, since then, things have changed. There is now an acknowledgement by the Government that planes transporting prisoners to countries where they face torture and inhuman and degrading treatment have come within the United Kingdom's jurisdiction.

Therefore, the amendment creates a power to allow the Secretary of State to require any plane using United Kingdom airspace to land if he has information leading him to believe that the plane is being used for the purpose of unlawful rendition. It also creates a specific duty requiring that, if such planes are forced to land, they must be searched and if the Secretary of State, senior police officers or customs officers believe that a plane using United Kingdom airport facilities may be involved in unlawful rendition, there is a power to search that plane. That is not as draconian as it may seem because there are powers under other legislation to search planes but they do not cover all the circumstances involved in unlawful or extraordinary rendition. The amendment also gives a power to search an aircraft if there is reason to believe that incorrect or misleading information on the passengers, crew and flight path has been supplied.

I do not propose to go into the admissions that have been made about the use of extraordinary rendition through United Kingdom airspace and property. The purpose of this amendment is not to consider what has happened but to look to the future so that concerns may be properly investigated. As I have already said, there are powers under customs legislation to search planes for smuggled goods, and the Terrorism Act 2000 (Information) Order 2002 gives police, immigration and HM Revenue and Customs the power to serve on the owner or agents of an aircraft in the United Kingdom a notice requiring details of the crew and passengers, but that is limited to cases involving terrorism. Therefore, there is a gap and that gap justifies the creation of additional powers such as we propose in this amendment. I hope that the noble and learned Baroness will see fit to accept it. I beg to move.

5.45 pm

Baroness Kennedy of The Shaws: My Lords, I support the amendment and do so knowing that I speak for many people who have been horrified to learn of the procedure of rendition and the great taint that it places on legal systems throughout the world. To find that a country such as the United States of America has been involved in moving prisoners to places where they can be tortured with greater impunity seems to be one of the scandals of modern times.

Also scandalous is the idea that other countries have in any way made that process possible. We know that allegations have been made that the United Kingdom is one such country. While that matter is no doubt a subject of debate and denial in certain quarters, I should have thought that the amendment would seek to allay any fears or concerns that such a process might be conducted in any way using British airspace or airfields in the manner that has been described. I hope that this Government will make it very clear not only that they oppose torture but that they do not in

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any way make it possible and that in fact they will introduce any steps that can prevent our nation being lent to this disgraceful practice.

Baroness Scotland of Asthal: My Lords, I apologise to my noble friend for rising too quickly. I say both to my noble friend and to the noble Lord, Lord Thomas of Gresford, that the amendment is unnecessary, but I join with them very strongly in their condemnation of torture and unlawful rendition.

As the noble Lord, Lord Thomas of Gresford, has made clear, this issue has been debated extensively in your Lordships' House on a number of previous occasions, particularly, as was mentioned, during the passage of the Civil Aviation Bill and the Police and Justice Bill in 2006. A similar amendment was also tabled at the Committee stage of this Bill in another place.

The main thrust of the proposed new clause is to amend the Aviation Security Act 1982 to provide the Secretary of State with a specific power to direct an aircraft overflying the United Kingdom to land and be searched if it is believed to be involved in an act of unlawful rendition. However, Article 3bis of the Convention on International Civil Aviation-the Chicago convention-already allows a state to require a civil aircraft to land if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of that convention, and on that basis we say that the amendment is unnecessary.

Further, the amendment throws up a number of practical difficulties. First, it would require an aircraft that had been directed to land, or any other aircraft already in the United Kingdom, to be searched if the Secretary of State had reason to believe that it was, had recently been or might in future be, involved in an act or acts of unlawful rendition. However, the degree of suspicion required to trigger this power is unclear and, at its lowest, could include any allegation whether supported by credible evidence or not. Although the amendment seeks to address what I believe to be a very serious issue-and I recognise that it will not always be easy to establish clear evidence that an act of unlawful rendition is in the process of taking place in sufficient time to act upon it-directing an aircraft to land is a significant step and any such direction should, in propriety, be based at the very least on a reasonable suspicion of current involvement in wrongdoing.

A further problem is that the entry and search of an aircraft could be based on a suspicion of past, albeit recent past, or future use of that aircraft for extraordinary rendition purposes. Allegations of past misdeeds, whether proven or not, are no evidence that acts of rendition are taking place on the current flight. Further, all aircraft could potentially be used for such purposes and, taken literally, the proposed new clause might place every aircraft landing in the UK at risk of being entered and searched. I know that is not what the noble Lord would wish; neither do I think it is the intention of my noble friend.

Of additional concern is the fact that the proposed new clause provides no discretion when it comes to the entry and search of an aircraft if reason to suspect recent past, present or future involvement in unlawful rendition is established. Even if evidence were subsequently discovered on board the aircraft, that would not of

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itself mean that the crew or individuals on board at the time of the search were necessarily culpable of an offence or indeed that an offence had actually taken place on that flight. If evidence were found that the aircraft had recently been involved in an act of unlawful rendition, it is not clear how this evidence would be used. I know that both my noble friend and the noble Lord are vociferous and rightful campaigners on individuals' rights. I can just hear what they would say if that were the purpose.

The police already have the power to search premises, including aircraft, under warrant. Indeed the proposed new clause clearly envisages a responsible person, in the normal course of events, applying to the court for a search warrant. Applications for search warrants are made under Section 8 of the Police and Criminal Evidence Act 1984 and a warrant will be granted where a justice of the peace is satisfied that there are reasonable grounds for believing that an indictable offence has been committed, that there is relevant, admissible evidence on the premises and that one of the conditions in Section 8(3) is satisfied. However, it is not clear from the amendment what a responsible person would be expected to do if a warrant of entry was applied for but refused by the court on the basis of insufficient grounds. Nevertheless, we believe that where a search warrant has been successfully obtained, this could be used in the case of an aircraft that had been required to land under the provisions of the Chicago convention.

I hope I have explained, as I believe others have before me on a number of occasions, that the Government have made it clear that we do not and will not grant permission for UK airspace or territory to be used for any unlawful rendition. If the United Kingdom's security and law enforcement agencies received intelligence that could give rise to the types of action envisaged by the proposed new clause, on a timescale that would permit such action, the aircraft would either be refused permission to enter United Kingdom airspace or be directed to land in accordance with the existing provisions of the Chicago convention. Although we shall continue to keep these powers under review, we respectfully suggest that the proposed amendment is simply unnecessary.

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