Armed Forces Bill

My Lords, I shall deal in some detail with all relevant issues that arise out of this amendment. Having done so, I hope that noble Lords will agree that it is not an appropriate clause for this Armed Forces Bill. As we have heard, the amendment obviously raises the issue of extraordinary rendition. I do not intend to spend any time on that, first, because the Government’s position has been set out on many occasions and is clear, and, secondly, because I believe that when considering a Bill dealing with the Armed Forces it is not appropriate to be sidetracked from this. We all know that this Bill is principally designed to provide a system of law for our Armed Forces which will allow them to continue to operate to the high standards that they consistently achieve now and ensure that they do so well into the future. So I want to concentrate on the issues that are relevant to this Bill—the issues that are relevant to our Armed Forces—as I am sure do noble Lords. I consider that the only relevant issue is regarding the responsibilities of servicemen and, in particular, commanding officers. I can confirm that my noble friend Lord Triesman would be happy to offer noble Lords a detailed briefing and discussion to explain the legal aspects relating to extraordinary rendition if that were felt to be helpful. The motivation of the noble Lord, Lord Garden, on this amendment is, I believe, the vulnerability of the commanding officer to criminal prosecution. I believe that that is misplaced in a number of respects with which I will now deal. It does not work and, even if it could be adjusted, it would add nothing to what is already provided for in general domestic law. First, I will deal with the arrangements that already exist for the handling of foreign aircraft at military facilities. Civilian aircraft are subject to the provisions of the Chicago Convention, which generally permits such aircraft to make flights into, or transit across, the territory of the United Kingdom. The convention does not prohibit UK civilian authorities entering the aircraft or dealing with any suspected criminal activity on board. It is therefore open to the three authorities that have responsibility for our borders—the police, Her Majesty’s Revenue and Customs and the UK Immigration Service—to carry out investigations if they consider that there is reason to suspect such criminal activity. This is of course subject to any diplomatic or sovereign immunity that applies. We cannot alter this. For example, if the Defence Council made regulations under this amendment that purported to empower our police to open diplomatic property, far from meeting international obligations, we would end up in breach of them. Although they are not subject to the Chicago Convention, all foreign state aircraft, including military aircraft, must not fly over the territory of another state or land without authorisation by special agreement or otherwise. When a military aircraft wishes to fly over or land in the territory of the UK, whether at a military or a civilian airfield, it must obtain diplomatic flight clearance. Diplomatic clearance is a process that is designed to control UK airspace. If we were to suspect wrongdoing on aircraft, we could refuse clearance. I know that some interest was expressed in the management of the process of diplomatic clearance. It is not relevant to the issues with which this amendment purports to deal, but, if it aids understanding, I am happy to explain it. Such clearances are dealt with by the MoD commitments staff who are responsible for the air defence of the United Kingdom. This process is designed to contribute to the defence of the UK, not to the enforcement of the criminal law. Bilateral agreements are in place with some countries that allow them not to apply for such clearance on a routine basis, but, even then, they must seek individual authority where they are carrying dangerous air cargo or VIPs. Information on this procedure is provided by the MoD to all embassies and high commissions. It makes it clear that there are rules that apply to the granting of such clearance. The information includes, for example, reference to the applicability of customs and immigration requirements. It does not make specific reference to complying more generally with the domestic law or with international law, but such issues are taken as read. Where we give clearance, it does not provide any immunity to the aircraft to which it is granted, although foreign military aircraft and personnel sometimes have some immunity under international law. The powers that our authorities could exercise in the circumstances would have to be decided by considering the facts of each case. It has to be recognised that we cannot override international law. However, I can assure the House that, should there be any evidence to suggest that any state was using the UK criminally to render people through it, the matter would immediately be taken up with the state involved to resolve the situation. The Government are more than satisfied that the police, Her Majesty’s Revenue and Customs and the UK Immigration Service have sufficient legal powers to deal with any criminal activity. What powers they can exercise over foreign individuals and property will depend on the circumstances, but this is governed by international law. We cannot introduce legislation that goes beyond what international law allows. Subject to international law, our authorities are able to react to any intelligence that suggests that an offence is being committed when foreign aircraft transit through our jurisdiction, including our military airfields. The guidance issued to embassies is being updated by the MoD. I would be more than happy to undertake to leave a copy of that guidance in the House Library if it would be of assistance. However, I hope that I have clarified in general terms what the process entails and, in particular, the fact that we already control the entry of such aircraft into our airspace and can deal with any criminal activities that they might undertake. The amendment would not add anything more to this. I am afraid that subsection (2) of the proposed amendment would, again, add nothing. Of course commanding officers—like anyone else—must not become parties to crime. As for the commanding officers’ ““responsibilities under international treaties””, I am afraid that this is a misunderstanding of how international law operates. Treaties are made by and between states. They create obligations and responsibilities for states and a breach of treaty obligations is a matter of state and not individual responsibility.