Police and Justice Bill

I was unable to participate at Second Reading, and my noble friend has made the case for this amendment so compellingly that I would not have been moved to intervene at this stage were it not for the hope of disentangling some of the legal disputations that arose in the course of our debates on the Civil Aviation Bill. Perhaps I may make it clear at the outset that I offer no criticism of my noble friend Lord Davies of Oldham. In fact, my heart went out to him. He came prepared to discuss the flight schedules of aircraft and found himself, at short notice, involved in discussions about the torture convention. Nor do I complain at all about his officials, who were plunged into unfamiliar waters and found themselves steering between the Scylla of international comity and the Charybdis of being accessories to torture. But today the situation is different. The Home Office team are playing at home and a legal obstacle course holds no terrors for my noble friend on the Front Bench. May we begin with recognising what is common ground? I have no doubt that my noble friend is as horrified by torture as is the noble Baroness, Lady D’Souza. We all agree that it is not a legitimate instrument for detecting and convicting terrorists, nor indeed a very effective one. It came as a shock to me to learn that personnel—and I hope maverick personnel—of certain intelligence agencies of some Governments take a different view. Secondly, I hope that there is no discord among us as to the existence of a problem. The concern that motivated the noble Baroness, Lady D’Souza, to move this amendment is not a wild fancy. The shocking instances we discussed on the Civil Aviation Bill, and some of the cases to which she referred a few moments ago, are well documented and I will not seek to repeat them now. Of course, it does not follow that all members of American intelligence services or security services behave in that way. Some of them I am privileged to know, and I am sure that they would be as horrified as we are. The difficulty may well be maintaining control over personnel operating abroad. What is perhaps as significant as the allegations is the reaction of the United States Government, and it gives me no pleasure to say this. They did not say, ““Oh, if this has happened, then we will take every appropriate action. We will co-operate in any inquiry””. When the Canadian Government established an inquiry into the rendition of Maher Arar, the United States declined to participate. In effect, they pleaded the Fifth Amendment. My friend and former colleague Terry Davis, quoted a few moments ago by the noble Baroness, Lady D’Souza, said on 1 March that most of Europe appears to be a happy hunting ground for foreign security services. We know from the National Air Traffic Services that two aircraft which, from their registration numbers, appear to have been chartered by the CIA have passed through the UK some 200 times. There is a problem and it is a matter of deep concern. The Government’s response in the earlier stage was threefold. First, they said we would fall foul of our obligations under international conventions. If that were true, the sooner the conventions were renegotiated the better. But as our debates continued, it appeared that they were under a misapprehension. I hope that that issue has now disappeared from discussions. I hope that it is accepted that any state aircraft—an expression which includes aircraft in military, customs and state service—is provided under Article 3 of the Chicago Convention as not entitled to fly over or land on the territory of another state without authorisation. Surely that would entail giving details of who the operators were and the purposes of the flight. Article 3bis permits that a state which has reasonable grounds to believe that an aircraft flying over its territory is being used for a purpose inconsistent with the aims of the convention may require it to land. The Government’s second objection to the amendment was that it was unnecessary, an objection which my noble friend advanced a few moments ago in a different context. It is not unusual from the Home Office—it is frequently justified and I do not complain. What was said on this occasion was that there was already power under the domestic law of this country for a constable or other authorised person to enter an aircraft on the ground. We discussed that in the debates on the Civil Aviation Bill. We all agreed that under Section 23 of the Police and Criminal Evidence Act ““premises”” includes aircraft, and my noble friend Lord Davies referred to Section 17, which gives a power to enter premises for certain purposes, the most important being the making of an arrest. Section 1 empowers a constable to search premises if he has reasonable grounds to suspect that he will find stolen or prohibited goods, and Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence. The problem is that none of those provisions is designed specifically for the situation that we are discussing, and it may not be possible to squeeze that situation like a piece of mosaic into any of the spaces created by those provisions. My noble friend's amendment would provide a power designed to deal with a case where an aircraft may be used for extraordinary rendition. We have legislation specifically to deal with terrorism. Why do we not have legislation to deal with rendition? The third objection was that it is no light matter to search an aircraft using landing facilities in this country or to require it to land. If we were to do so, said my noble friend, it might provoke resentment and retaliation. It was pointed out that the existing provisions that we have been discussing all require reasonable suspicion. The first response to that is that my noble friend's amendment contemplates requiring an aircraft to land only if the Secretary of State is aware of intelligence that the aircraft is being, has been or may be used for unlawful rendition, and that the aircraft will be searched only if the Secretary of State or other responsible person is so aware. The action would need to be intelligence-based. The standard of suspicion required may be rather lower than that required, for example, by the powers under PACE, but that is because it is difficult to know what is going on within an aircraft without going aboard to see—an aircraft is not transparent. In a matter of such importance, risking a failure to detect may be risking a human life, or at least very serious consequences for the victim. The second response to the argument about inconvenience and delay is that, if an aircraft is required to land, there will be very little difficulty in having a constable ready and waiting to conduct a search. It would not be a technical operation requiring a highly trained operative. Constables are not all that difficult to find. If the aircraft is already on the ground, the delay is likely to be minimal. My noble friend's amendment is not mandatory; it is enabling. It would confer a power of search and not make a search compulsory in a situation where it was wholly unreasonable. Mr Terry Davis, announcing some of his findings on behalf of the Council of Europe, declared: "““While most of our member states have mechanisms to supervise the activities of their domestic intelligence agencies as well as the presence of foreign police officers on their territory, hardly any country, with the clear exception of Hungary, has any legal provision to ensure an effective oversight over the activities of foreign security services on their territory””." That is a deeply disturbing indictment. The amendment moved by my noble friend would at least be a step towards rectifying that.