Police and Justice Bill

My Lords, we are on well trodden ground. The proposal of the noble Baroness, Lady D’Souza, was debated three times during the progress of the Civil Aviation Bill; it was debated in Committee on the present Bill; it was the subject of an Unstarred Question tabled by the noble Lord, Lord Campbell of Alloway; and it was debated last week in a slightly different form in an amendment tabled by the noble Lord, Lord Garden, to the Armed Forces Bill. Anyone might be forgiven for wondering what there is left to say. But a number of unanswered questions remain, and the basis for the noble Baroness’s anxiety is as clear now as when she first expressed it. Our discussions over that period may simply have deferred the time when we have to take a decision. The revisions to the amendment that she originally tabled reflect two factors that emerged from our earlier debates. First, as she indicated, and as the noble Lord, Lord Garden, mentioned, there are divergent views about how far existing statutory powers are sufficient to ensure that the United Kingdom complies with its international obligations under the torture convention. Secondly, there is—so far as I am concerned, at least—an uneasy suspicion that there is a culture in some circles of not wanting to ruffle any feathers, particularly American feathers. I am delighted that the noble Baroness has redrafted the amendment so that there would now be not merely a power to enter the aircraft, but a duty to do so. So where United Kingdom facilities may be being abused, the provision is no longer permissive, but mandatory. Perhaps it would help to spend a moment clarifying what is now common ground and what remains debateable. I accept unreservedly that the Government totally condemn torture for the purpose of interrogation or for any other purpose. It hardly needs saying that I accept without hesitation that my noble friend on the Front Bench would not knowingly be complicit in the use of torture by the agents of this or any other country. I echo the gratitude expressed by the noble Baroness, Lady D’Souza, for the willingness of my noble friend and her officials to discuss this in order to assist in narrowing the area of dispute. I am not aware of any evidence to suggest that agents of this country have made use of torture, but what is in question is whether the Government have taken all the steps reasonably open to them to ensure so far as possible that no facilities have been made available to assist others with less scrupulous standards to subject anyone to the risk of torture. The torture convention imposes an obligation on states and individuals not to be complicit in acts of torture, an obligation of which the noble Lord, Lord Kingsland, reminded us last week. If that gives rise to a number of questions on which debate is not concluded, perhaps we may be forgiven for at least adverting to them. First, is there evidence that facilities in this country have been abused to assist rendition to a destination where there was a risk of torture? The evidence is overwhelming that the actions of the CIA have led to people suffering torture. I regret having to state that so bluntly, as some of my friends are employed by the CIA. I am certainly not suggesting that every official of the CIA is complicit in the practice, and I appreciate the difficulty of controlling agents operating in foreign countries. We examined some of the evidence in the debates on the Civil Aviation Bill on 28 March and we reviewed it again in Committee on this Bill on 4 July. It is also reviewed in the Amnesty International report Partners in Crime. It was dealt with in some detail in the Council of Europe report by Senator Dick Marty and it was summarised by the Secretary General, Mr Terry Davis. It was even set out in the report Torture by Proxy: International and Domestic Law Applicable to ““Extraordinary Renditions”” by the committee on international human rights of the New York Bar and by the United States Center for Human Rights and Global Justice. Furthermore, in the United States there is considerable concern about the practice. I am grateful to Liberty for its very helpful briefing on this subject, which was prepared in anticipation of our debates on the Bill. Of course the evidence does not establish that the facilities in the United Kingdom were used in the course of rendition. Its relevance is that it establishes the propensity of some CIA agents unscrupulously to practise extraordinary rendition—and any country offering facilities to aircraft operated by the CIA would be turning the proverbial blind eye if it ignored the record of those with whom it was dealing. Even the United Kingdom is confronted by uncomfortable questions that need to be answered. Both the Council of Europe and the Amnesty reports referred to the case of Bisher Al-Rawi and Jamil El-Banna, which led to proceedings in the High Court for judicial review. They were arrested in Gambia, apparently in consequence of their travel arrangements supplied by United Kingdom officials, and were then sent by the CIA to Afghanistan. It is important to establish, if possible, whether the United Kingdom officials who supplied that information were aware of what was intended. Perhaps my noble friend will address that question when she replies. The second question that requires to be answered is what precautions, in the light of the CIA's known record, can and should be taken to ensure that the United Kingdom is not used unwittingly in extraordinary rendition. Aircraft are not transparent; the only way to ascertain who is on board and in what circumstances is to enter the aircraft and look. An aircraft in state service—an expression that includes aircraft in military, customs or police service—is not entitled to fly over or land on the territory of another state without authorisation. I must confess that until the debate last week I had derived some comfort from that, as I had assumed that authorisation would be required prior to each such flight and it would be known when an aircraft was operated by the CIA. But, in the debate initiated by the noble Lord, Lord Garden, my noble friend Lord Drayson informed a startled House—at col. 440—that separate authorisation is not required, as there is a system of what is euphemistically called ““diplomatic clearance””, which means that someone has given what appears to be blanket permission, and specific clearance by the airfield authorities is not required. I would be grateful if my noble friend will spell that out in a little more detail. Does someone in this country have to be notified if it is proposed that a CIA-operated aircraft will fly over United Kingdom territory and make use of airport facilities, or is it done on a ““Don't bother to mention it”” basis for the whole category of military aircraft? Does it apply to all military aircraft or only to those of the USA? Is there a requirement to provide information on the purpose and destination of the flight? Does someone decide whether a specific flight calls for further inquiry? If so, who? Or does diplomatic clearance mean that no one asks any questions? Of course, it is not suggested that every aircraft operated by the CIA should be searched. It is accepted that there is a stage where investigation may appear as harassment and that that may occasion friction with the United States. The proposal is that an aircraft should be liable to a requirement to land if the Secretary of State is aware of intelligence that it is being or may be used for unlawful rendition. Of course, there is room for discussion about the standard of intelligence required. The noble Lord, Lord Kingsland, helpfully provided an analysis of that question in our debate on 18 July, at col. 1220. But that problem is not incapable of resolution between us. If there is such intelligence, surely the United Kingdom is under an international obligation to make inquiries before permitting such an aircraft to proceed. If the aircraft is required to land, there is surely no difficulty in having an official or constable available to conduct a search. The inconvenience to the aircraft is surely minimal by comparison with the risk that someone may be tortured. The remaining question is the one referred to by the noble Baroness, Lady D'Souza, as to whether there exists a power under existing domestic law to enter and search an aircraft. The Government maintain that the whole proposal is unnecessary because the statutory power exists already. The noble Baroness, Lady D'Souza, has already addressed that matter; we have debated it more than once and I shall not weary your Lordships by rehearsing the argument again now. However, it would be helpful if, when my noble friend replies, she would say whether that is the only stumbling block that the Government see. If they are convinced that there is a need for something more than that, the other matters, which we have debated at such length, do not really prevent their acceding to the proposal. In any event, the question now largely falls because the proposal is that there should be a mandatory requirement, not merely a power. What troubles some of us is that this country may become complicit in these appalling practices, however unwittingly, because no one cared enough to ask the right questions and to conduct a simple search.