Armed Forces Bill

My Lords, I am grateful to the Minister for going into so much detail at Third Reading, much of which we have heard in relation not only to this Bill but to the Civil Aviation Bill and the Police and Justice Bill, when dealing with associated topics. Much of what he said was uncontentious, but he did not address the real question of what the poor commanding officer does. I shall address some of the contributions made by other noble Lords. The noble Lord, Lord Lyell, asked where the extra ““s”” came from in ““aircrafts”” in the amendment. I have no idea where it came from. We have been moving quite rapidly with this Bill and the editing must have gone wrong. The noble Lord, Lord Campbell of Alloway, referred to a bipartite arrangement. My concern is that we now have clear evidence that the definition of torture in the United States is not the definition of torture that we understand in the United Kingdom or elsewhere, given that the Vice-President can go on the media and apparently accept water boarding as a reasonable form of interrogation. I am totally at one, in one sense, with the noble and gallant Lords, Lord Boyce and Lord Inge, in that what really worries me is that commanding officers are being put in an impossible position. That was the concern. We have heard from the noble Lord, Lord Kingsland, that there is no escape from this; the responsibility is clear. That is what subsection (2) of the amendment says—it merely restates the responsibility of commanding officers. The problem is how they handle these things. We have some guidance from the Minister, who says that if they have any reason to suspect things they had better go out there and sort it out. Perhaps that is an advance, but I would prefer there to be a Defence Council instruction that told them what they should do in specific circumstances. It is not a question of telling them to investigate every foreign aircraft that lands; it is a question of giving them guidance that they can turn to. Even noble Lords have had great problems with establishing who is responsible for what under the Chicago or the Tokyo conventions and so on. We are talking about some poor commanding officer of an airfield, who has to make a judgment. For that, he must have guidance—and that guidance comes in the form of Defence Council instructions. We have not said that the Defence Council has to provide those instructions; we have said that it ““may”” provide them. Indeed, I hope that it would provide them—but I am unaware of their existing at the moment. There is also a degree of confusion around your Lordships' House about diplomatic clearances. Unless systems have changed greatly since I was the commander of an operational airfield, diplomatic clearances are done en bloc, with a month’s worth of flights to go to one place or another. That is different from diplomatic immunity—it is the system by which the flights are managed. My great concern is that if we are operating diplomatic block clearances for flights with a nation that has a different definition of torture, we may find that commanding officers are put in an impossible position, to use the phrase of the noble and gallant Lords. We have a duty to offer advice, and this clause would make it clear how that advice should be offered. I beg leave to test the opinion of the House. On Question, Whether the said amendment (No. 7) shall be agreed to? Their Lordships divided: Contents, 69; Not-Contents, 170. Schedule 2 [““Schedule 2 offences””]: