Lords Hansard text for 21 Feb 200821 Feb 2008 (pt 0013)

4.51 pm

Lord Judd: My Lords, would my noble friend accept that many of us on this side of the House—

Noble Lords: Cross Bench!

Baroness D'Souza: My Lords, I thank the Minister for repeating the Statement made earlier in the other place. Since the earliest indications of the practice of extraordinary rendition, there have been persistent calls for a full and impartial inquiry, which is required under the terms of the UK obligations as a signatory to the UN convention against torture. Although some of my concerns have already been voiced by others, and indeed to some extent answered, I make no apology for repeating them because we are dealing here with a matter of such fundamental importance.

The UK’s role has been called into question time and time again. The response has always been that such an investigation was not necessary. Does not this revelation show how much further investigation, including scrutiny, needs to be carried out of any infringements of the prohibition on using UK airspace? Surely we cannot continue to have simply blind trust any longer.

Furthermore, despite the Government’s reluctance to reveal the names of the individuals concerned, if those individuals come before a military commission and are charged on the basis of information extracted under torture, they can be protected by the international community, including us, only if we know who they are and the details of their current circumstances.

Lord Malloch-Brown: My Lords, the noble Baroness will wish to know that we are seeking more information about the two cases. We need to take this one step at a time. The ISC looked extensively into this, but its findings have obviously been compromised by the discovery of these two cases. The first step is to establish the facts: hence the list that we will send to the US to seek its confirmation that no renditions were involved. At that stage, we will be in a better position to know what follow-up steps, including an inquiry, might be necessary.

Lord Judd: My Lords, I apologise to the noble Baroness. I did not intend to pre-empt her intervention. Does my noble friend appreciate that many of us on this side of the House will be very relieved at the tone and candour of the Government’s Statement, now that these new circumstances have come to light? Their very prompt decision to come before the House is reassuring. However, does my noble friend also appreciate that there will be continuing profound anxiety

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that there seems to have been a presumption that assurances by the United States could be taken at face value, despite all that we now know and have increasingly known about political manipulation in the United States of intelligence and the rest? There is precious little indication that serious concerns, expressed by the Council of Europe and other responsible bodies after a great deal of detailed research, were pursued, investigated and evaluated with the rigour that we should have been able to expect. Can we have reassurances on that score?

Will my noble friend also reflect that phrases such as “We believe water boarding to be torture”, or saying that we are reassured by some of the steps that have been taken on the legal situation in Guantanamo Bay are not in fact reassuring because they suggest that we are not being as resolute and firm as we should be? We should simply say that water boarding is torture and that Guantanamo Bay is illegal and cannot be condoned, whatever changes may be made in how it is handled.

Lord Malloch-Brown: My Lords, let me immediately confirm that we believe that Guantanamo should be closed and that water boarding is torture: I am happy to drop the words “we believe”, a redundant flourish to the sentence if ever there was one.

I turn to the core point that my noble friend made when he said that this Government have operated on the assumption that the presumption of assurances by the US could be taken at face value. The United States is our principal ally, and the special relationship has done us well over a very long time. However, I suspect that, when it comes to an ally, we may be guilty of taking as true its express assurance that something has not happened. The steps that the Foreign Secretary has authorised today—to present the US with a list of flights, about which Members of this House and organisations such as Amnesty may have concerns—show that we are no longer willing to take trust at face value on this issue. We recognise that we have, sadly, reached a point where we need to press much more explicitly for clear, unequivocal certainty that these flights were not used for rendition.

Lord Mawhinney: My Lords, will the Minister clarify something for me? Having listened carefully to the Statement, I am not clear whether he is saying that these events took place and that the Americans forgot either to tell us or ask us, or that they took place and that the Americans did tell or ask us, and that this Government have just lost another file. Which answer should we believe from this Statement? Whichever it is, as somebody who has for 30 years been a strong advocate of the special relationship, the Minister has demonstrated that assurances from both Governments cannot be relied on in this area. Why, then, is he so reluctant to pursue an independent assessment that might provide an assurance that everybody could rely on?

Lord Malloch-Brown: My Lords, these cases had never been shared with us until last Friday, so it is not a case of this Government losing the file. Let me also

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make it clear that the steps to put in place a new and systematic means of ensuring that any rendition activities were fully reported to us, and our permission sought, emerged from 2003 onwards. That was when the issue became one of public concern; there was public debate and enquiries and investigations were undertaken by different organisations, including the ISC. It was during that period that these more systematic arrangements occurred.

While already under existing informal practice we would have expected the cases in 2002 to be shared with us, the system has been systematised since. Let me again say that the US Government, at both the official and the political level, assure us that there have not been in the recent period, and there would not be in the future, any cases where they would seek to disguise or withhold from us renditions via British airspace or British territory.

Lord Dholakia: My Lords, is it possible to establish the facts by asking the American Government? There are finite numbers of people in Guantanamo Bay and there must be a record of how they came to be there. Can we find out whether any one of them was rendered through UK airspace or territories? As a supplementary action, will he ask other European Union members whether any flights took place to those countries and ask the American Government to give an explanation?

Lord Malloch-Brown: My Lords, the noble Lord makes a very sensible point, but nothing is ever simple. It is not, I think, the case—students of this issue would confirm this—that we have no assurance that all those who might have been subject to rendition or might now be subject to extra-judicial punishment are in Guantanamo Bay. Another component of this rendition problem is people who were sent to third countries. Unfortunately, the case load at Guantanamo is not the entirety of the problem. One of the two individuals moved through Diego Garcia in 2002 is this day in Guantanamo. Again, the issue is to get as full an exposure of the facts as possible, once we have received the US response, in order to determine the appropriate next steps.

The Earl of Onslow: My Lords, I think I understood the Minister to say that we would not allow rendition unless it was allowable under English law. I may have misunderstood, but when could rendition be allowed by English law?

Lord Malloch-Brown: Yes, my Lords, I would be happy to so do. Some cases of deportation—the more normal way that we think of this—take place because there are not agreements between the countries involved to allow deportation, but, nevertheless, the movement of the individual is into an environment where they will enjoy a proper justice-based trial and their full legal rights. There are certain narrow circumstances where rendition is allowable.

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Lord Archer of Sandwell: My Lords, does my noble friend recollect that there have been a number of debates in your Lordships’ House exploring whether it would be possible to search CIA-operated aircraft being serviced at United Kingdom airports? Given the whole history of this matter and what has now emerged, has the time not come to re-examine that question, which would, after all, be only a minor inconvenience for the aircraft concerned?

Lord Malloch-Brown: My Lords, my noble and learned friend is correct. Obviously, CIA aircraft, by definition, have rather different logos on them. Some are on a contracted basis, but in terms of our intelligence co-operation, I expect that we do know, and should know, the CIA or CIA-sponsored aircraft that pass through our airspace. In general, our difficulty is that 2 million flights a year pass through our airspace. Therefore, obviously on issues such as this, we need to be able to boil down our case load to something reasonable, as my noble and learned friend’s question proposed.

Many parts of the US Government are moving people around. Any rule that seeks to put in place a policing system will be less comprehensive and effective than restoring a basis of systematic trust in our dealings with the US and where their assurances are ones that we think we can take to the bank.

Lord Dubs: My Lords, I welcome the clear Statement that my noble friend has made, particularly on the total opposition of the British Government to torture, the fact that rendition where torture might be involved would be unacceptable to us and the confirmation of our view that waterboarding is torture. All that is very welcome. Do not assurances given by the American Government that torture will not be practised lead us into a difficult position, given that they do not believe that waterboarding is torture? Will my noble friend suggest a way out of that?

Lord Malloch-Brown: My Lords, let me make it clear that the US has told us that it did not hold either of those men in a secret detention facility and that neither was subject to techniques such as waterboarding. We have already sought that confirmation on these individual cases.

Baroness Falkner of Margravine: My Lords, I was sorry to hear the noble Lord say that this information had not come to light because of some imminent Washington Post article as far as he knew—I think that that is how he phrased it. If it comes to light that, because of a forthcoming Freedom of Information Act request or some other method, fuller information may soon emerge, will he accept that the doubts that we are hearing in this House are more legitimate than he has suggested?

We know that in many cases since 2001 extraordinary rendition—certainly according to the definition given by my noble friend Lord Thomas of Gresford—has involved kidnap of nationals from one country to be taken somewhere else to extract information from them. Are the Government minded to work with the

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European Union to find out whether there is some way that all European airspace can be regulated in a manner to prevent that from happening when a superpower decides to pick up people? I give one brief example; I will not take too much time. Is the Minister aware of the number of people who are kidnapped from the border areas of Pakistan, handed over to American forces in Afghanistan and rendered to secret detention centres? One does not hear about those people in the media here, but they come back—if they do at all—with their lives completely damaged. Not only should the UK not be complicit in this but we should set the lead by working to ensure that all EU countries are not complicit. Does he agree?

Lord Malloch-Brown: My Lords, on the noble Baroness’s first point, any investigation in the US can quickly be followed by a freedom of information request because it is harder to keep secrets in Washington than it is in Whitehall. I agree with her, but I probably should not walk out too far on that branch. However, the US has put it to the Government that in its internal housekeeping of going through its files it uncovered those two cases and felt that it should bring them to our attention as quickly as possible. At the risk of ridicule in this House, I am forced into using famous phrase, “We’ll have to take it at face value”. The US has been insistent that it did this because it recognised that it had led us to mislead Parliament and that we needed to correct that as soon as possible.

On the broader point, let me say again that we are opposed to extraordinary rendition. While in a House of lawyers I am reluctant to get into a definition of the term, I am told that, unlike the narrower term “rendition”, it means moving people to somewhere where they are likely to suffer torture or other infringements of their legal and civil rights. We are agin it in all its forms. On the final point, I see the attraction of a proposal for European airspace. We should explore that.

Lord Boyd of Duncansby: My Lords, the Minister is to be congratulated on coming to the House so quickly and on the candour of his answers. In one of his replies he mentioned Prestwick. He may know that, when I was Lord Advocate, I was asked to use my powers to direct the police to conduct a criminal investigation into the alleged use of Prestwick and other airports in Scotland for extraordinary rendition. I declined on the basis that the test that would have allowed me to do so was not met. Nevertheless, there have been strong and persistent rumours regarding the use of airports not just in Scotland but throughout the United Kingdom for the purpose of extraordinary rendition.

First, will the Minister give an assurance that all the material that has been provided by organisations such as Amnesty International and Liberty will be included in the list of flights about which the Government seek advice and answers from the United States? Secondly, does he agree that it is not just the extraordinary rendition through United Kingdom and overseas territories airports that is abhorrent, but also the use of our airports for facilitating extraordinary rendition by, for example, refuelling aircraft on their way back from rendition? Some of

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the allegations that have been made concern that point. Will he make it quite clear to the United States that we will not countenance that kind of facilitation?

Lord Malloch-Brown: Let me first assure my noble friend that not just Prestwick but all UK airports that could possibly have involved rendition flights or flights that have passed through UK airspace will be examined. He has caught me a little with his second point about flights returning without anyone on board, which is of course a harder issue, on which we need to reflect. But again let me make it clear that the US assured us that no detainee had been or would be rendered through UK airspace or that of our overseas territories without our knowledge. These assurances were sought in 2005 as a result of the concerns raised then and have been repeated on numerous occasions since. Particularly as regards Diego Garcia, as I said, this had started in 2003, so we continue to believe that what we are discussing is a problem of failed reporting—an historical problem about that earlier period. It will be a huge disappointment and cause of difficulty in our relationships if we find that there are more recent cases; we devoutly hope that we will not. However, for that reason, the list that we submit will be as exhaustive as possible, because we have to slay the demons on this in order to restore trust and confidence to both sides of the relationship.

Baroness Royall of Blaisdon: My Lords, I regret that the time is up for questions on the Statement. I beg to move that the House do now adjourn during pleasure until 5.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 5.13 to 5.40 pm.]

Business

Baroness Royall of Blaisdon: My Lords, as you will be aware, the House is likely to sit late tonight in order to complete our consideration of the Banking (Special Provisions) Bill. I am grateful to the House authorities, and particularly the Refreshment Department, for making arrangements to provide extra dining facilities. In addition to the usual service in the Barry Room, River Restaurant and Bishops’ Bar, dinner will also be available until 9 pm in the Home Room and the Long Table in the Peers’ Dining Room. As the Bill progresses, dining arrangements may change and will be updated as necessary.

Banking (Special Provisions) Bill

Report received.

Lord De Mauley moved Amendment No. 1:

After Clause 7,Insert the following new Clause—

“Management scheme

Where an order is made under section 3 the Treasury shall, not later than the day that the order is made, lay before both Houses of Parliament a Minute setting out a scheme for the management of the authorised United Kingdom deposit-taker,

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including provisions setting out the strategic objectives for the business as determined by the Treasury and further provisions to ensure the independent day-to-day management of the business of the authorised deposit-taker to achieve these objectives.”

The noble Lord said: My Lords, when the amendment was discussed in Committee it was appropriately grouped with two Liberal Democrat amendments dealing with similar, but not identical, matters. Whereas the amendments of the noble Lord, Lord Newby, focused on the business plan that Northern Rock would follow, our amendment looked in addition at the framework agreement that would govern the relationship between the Treasury and the board of Northern Rock. I know the Minister addressed the matter to a certain extent during the debate, but whereas I was pleased to note his categorical assurance that the business plan would be published and laid before Parliament, I did not catch the same assurance for the framework agreement.

It is quite possible that the amendment is unnecessary and that he did indeed make that assurance. It is unfortunate that Hansard has been unable to keep up with the debates earlier today to the extent that I could check the on-line text before returning to the Chamber. Indeed, it is one of the many disadvantages of rushing legislation through in this manner that on entering the next procedural stage one has hardly the time to recover from the previous one, let alone fully assimilate what has or has not been conceded.

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