New Clause 5

– in a Public Bill Committee at 3:30 pm on 26th February 2009.

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Extraordinary rendition

‘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 any reason to believe that an aircraft that is in flight over the United Kingdom is or has 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 any reason to believe that—

(a) an aircraft in an aerodrome is or has 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 (c. 13) 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 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 (c. 60).

(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. 77);

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

(d) one of the Commissioners of Her Majesty’s Revenue and Customs;

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

(Paul Holmes.)

Brought up, and read the First time.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 3:45 pm, 26th February 2009

I beg to move, That the clause be read a Second time.

The new clause would amend the Aviation Security Act 1982. It would introduce new powers to direct a plane crossing British airspace to land and be searched if it is suspected of involvement in unlawful rendition. Proposals on this issue were tabled to the Civil Aviation  Bill and the Police and Justice Bill in 2006, but were unsuccessful. Given the acknowledgment since that time that planes transporting prisoners to countries where they faced torture and inhuman and degrading treatment have come within the UK’s jurisdiction, it is appropriate to look at the matter again. Given that we debated the 1982 Act in earlier sittings, this Bill seemed to be the relevant place to raise the matter again.

The new clause would require the Secretary of State to take this action if he or she thought that people were being unlawfully rendered in planes that cross British airspace. There is the side issue of planes that land to refuel on British territory, whether in this country or airbases like Diego Garcia. That discussion has been rehearsed on other occasions. It is unnecessary to go into the allegations that have been made or the admissions that this has happened in UK territory and airspace. The Government confirmed that our base on Diego Garcia had been used at least twice for flights involved in extraordinary rendition. We are not trying to reopen the argument about what has happened in the past.

Given the admissions that have been made, a line must be drawn and legislation should be amended so that the UK can take action to carry out its obligations under human rights legislation, international law and as a signatory to conventions on the use of torture. We should not by passive acquiescence be seen to condone such activity or to allow it to take place in areas under our jurisdiction.

The new clause is self-explanatory, so I leave it to others to respond.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I do not want to detain the Committee in relation to this new clause. Serious questions have been raised over the Government’s involvement in extraordinary rendition. What activities may or may not have taken place must be considered further. The underlying issue is that information must be provided and assurances over future conduct given. More than anything, the new clause is intended to promote and provoke debate and consideration of these important issues. It also seeks to ensure that this country complies with international conventions and human rights legislation.

Given the hour and the time left to the Committee, I do not wish to embark upon a full-scale debate on extraordinary rendition. That would not be appropriate in the circumstances. However, we will continue to press the Government on this issue and to raise questions. I will listen with interest to the Minister’s response.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

It is a pleasure to see you in the Chair this afternoon, Mr. Bayley. This issue was debated at length on a number of occasions when similar amendments were tabled on Report to both the Civil Aviation and the Police and Justice Bills in 2006, as the hon. Member for Chesterfield said.

The main thrust of the new clause is to give the Secretary of State a specific power to direct an aircraft overflying the UK to land and be searched if it is believed that it is involved in an act of unlawful rendition. However, the Chicago convention on international civil aviation 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. I therefore suggest to the hon. Gentleman that the new clause is unnecessary.

As the hon. Member for Hornchurch suggested, I do not intend to go into the whole debate on extraordinary rendition, but I have to respond to the suggestions in the new clause. Before commenting in more detail, it might help if I briefly explain the current requirements regarding permission for foreign aircraft to land at UK airports and enter UK airspace. Aircraft registered outside the EU and the European economic area require the prior permission of the Secretary of State for Transport to operate commercial flights into the UK. A shorthand definition of a commercial flight is that fee-paying passengers or cargo are being picked up or dropped off. That definition applies equally to scheduled and charter flights. The obligation for operators of international commercial aircraft to seek permission to land is set out in articles 5 and 6 of the Chicago convention and reflected in UK legislation in article 138 of the Air Navigation Order 2005.

The Chicago convention also provides that flights operated on a private basis, that is flights for which payment has not been made to the operator for the carriage of passengers or cargo, may overfly contracting states and stop in them to refuel, or for other technical reasons, without prior permission. Again, that is in article 5 of the convention.

State aircraft—those used in military, customs and police services—are required by article 3 of the convention to acquire the authorisation of the foreign state to overfly or land. In the UK, that is a matter for either the Secretary of State for Defence or the Foreign Secretary. The procedures required for the authorisation of state aircraft entering UK airspace or landing on UK territory are set out in the diplomatic flight clearance procedure, which is derived from article 3 of the convention. Clearance under those procedures does not provide any immunity against breaches of national or international law or regulations, or authorise the aircraft, its crew or passengers to act in such a way that leads the UK to breach its international obligations.

The right to fly over UK airspace without landing is given to scheduled international air services by article 1 of the international air services transit agreement—a sister agreement to the Chicago convention—and prior permission is therefore not required. A right of overflight for non-scheduled air services is granted by article 5 of the Chicago convention, but is subject to the overflown state’s right to require the aircraft to land.

The proposed new clause seeks to introduce an amendment to the Aviation Security Act 1982 that would provide the Secretary of State with a specific power to direct an aircraft in UK airspace to land. Further, it would provide a power to search that aircraft or any other aircraft already in the UK when there was any reason to believe that incorrect information had been given under section 32 or 33 of the Immigration, Asylum and Nationality Act 2006, or that the aircraft in question was, had been, or might in the future be, involved in acts of unlawful rendition.

One of the practical problems with the new clause is that it does not specify the level of suspicion required to trigger a direction from the Secretary of State that an aircraft must land. That could mean that any allegation, whether or not supported by credible evidence, would be sufficient to allow the Secretary of State to issue such a direction. While I recognise that the purpose of the amendment is to address a very serious issue and that  there are difficulties in establishing evidence that an unlawful rendition is taking place in sufficient time to act upon it, directing an aircraft to land is a significant step and accordingly any such direction should be based at least upon a reasonable suspicion of wrongdoing.

A further practical problem with the new clause is that it would allow the entry and search of any aircraft that there is reason to believe has been or may be used for unlawful rendition. Allegations of past misdeeds, whether proven or not, are no evidence that acts of unlawful rendition are taking place on a current flight. Further, all aircraft have the potential to be used for unlawful rendition and, taken literally, the new clause would require every aircraft landing in the UK to be searched. I certainly do not think that is the intention of the hon. Gentleman.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

Obviously, we are talking about the discretion of the Secretary of State, who would not apply it to every plane that flew over. So far the Minister has confined his comments to civil aircraft and argued that existing legislation covers that. These provisions would apply to the military as well.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

I am happy that the hon. Gentleman has raised that point, as I am just coming to it.

The new clause provides no discretion when it comes to the entry and search of an aircraft directed to land or already on the ground in the UK if there is any reason to suspect past, present or future involvement in unlawful rendition. Once such a reason had been established, there would be an obligation on responsible persons to search the aircraft every time it landed in the UK in future, regardless of any change of ownership, unless or until it had been established that the aircraft was not, nor had ever been, involved in such operations. In the absence of any distinction being drawn between state and non-state aircraft, that has the potential to raise particular difficulties, especially regarding military aircraft of the armed forces of visiting states.

Crucially, however, as I mentioned earlier, the new clause is unnecessary as article 3bis of the Chicago convention already allows a state to require civil aircraft to land if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the convention. An act of unlawful rendition may well fall within such a definition. We would nevertheless need to be very sure of our intelligence before taking such a step. Furthermore, the police have the power to search premises, including an aircraft, under warrant. Applications for a warrant are made under section 8 of the Police and Criminal Evidence Act. A search 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. We believe that these powers could be used in a case in which an aircraft had been required to land under the Chicago convention, but there would have to be sufficient information to satisfy the court that there were reasonable grounds for suspecting an indictable offence had been committed.

As can be seen, sufficient powers are already in place under existing legislation to take action of the sort envisaged by this new clause, based on reasonable suspicion. This view is supported by the Intelligence and Security Committee’s report into rendition, which stated:

“We are satisfied that, where there is sufficient evidence of unlawful activity on board an aircraft in UK airspace, be it a rendition operation or otherwise, this would be investigated by the UK authorities.”

While we will continue to keep these powers under review, the proposed new clause is simply unnecessary. I therefore call on the hon. Member for Chesterfield not to press his new clause.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

A number of issues arise following what the Minister has said. The suggestion is that the legislation adequately covers civil aircraft, but there are doubts about parts of it. The Terrorism Act 2002, for example, gives

“police, immigration and HM Customs and Excise the power to serve on the owner or ‘agents’ of an aircraft arriving in the UK a notice requiring details of the crew and passengers, but this is limited to cases involving terrorism.”

That is limited to terrorism. There are other possible ramifications which might not be covered by that provision, so the legislation is not all-embracing. It applies only to civil aircraft. Unless I missed it, the Minister did not go on to talk about military aspects. What is new since the attempts to amend previous legislation in 2006 is that we have had quite a humiliating climbdown by the Foreign Secretary, who has twice had to admit that he unwittingly misled the House because he had taken on good faith what the US Government had told him.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

I did say state aircraft, and obviously that covers military as opposed to civilian aircraft, which formed the main content of my remarks.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

Is it the hon. Gentleman’s guess that “military” might include the CIA?

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

If it is state aircraft it would embrace everything—civil, military, specialist CIA flights. We all know the old example of the famous Air America flights that operated in south-east Asia in the Vietnam, Cambodia and Laos wars, so the definition covers the whole range.

Debate interrupted (Programme Order, 27 January and 24 February).

The Chairman put forthwith the Question already proposed from the Chair (Standing Order No. 83D), That the clause be read a Second time.

Question accordingly negatived.

The Chairman then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).