Drones: International Law

Lord Hodgson of Astley Abbotts Excerpts

Thursday 16th January 2020 Lords Chamber

Asked by

[Lord Hodgson of Astley Abbotts]

To ask Her Majesty’s Government what assessment they have made of the implications of the use of drones to assassinate Qasem Soleimani for existing agreements on the use of drones.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I begin by drawing the House’s attention to two of my interests. I am an officer of both the All-Party Parliamentary Group on Drones and the All-Party Parliamentary Group on Extraordinary Rendition.

The expanding use of drones and its implication for the legal framework that covers their operation raises a series of serious policy issues. Before I come to the substance of my remarks, I need to make one point of principle clear: the first duty of a state is to protect its citizens. We live in a difficult, complex and dangerous world where many issues are not as black and white as we might wish them to be. I therefore accept that forming policies to deal with shades of grey will always be challenging. However, the fact that it is challenging cannot mean that we do not strive to achieve the appropriate level of democratic accountability and control. Accordingly, the standard government answer that is used too often to close down discussion on these points—“We never comment on intelligence matters”—cannot always be allowed to pass unchallenged.

My purpose in initiating the debate is to enable the House to discuss: first, the effectiveness of the legal and operational framework that covers the UK’s drone programme; secondly, the extent of safeguards built into our arrangements with our allies as regards drone operations to ensure that the UK remains in compliance with its international legal obligations; and finally, whether the present arrangements provide a proper degree of public scrutiny and accountability.

We must begin by accepting that, in recent years, drone operations have experienced a high degree of what is known as mission creep. First, the United States has dramatically expanded its drone use by unilaterally declaring certain countries as containing what is described as an “area of active hostilities”. That definition gives local commanders the latitude to act without having to believe that targets threaten the United States itself. Secondly, the use of a Reaper drone to assassinate Qasem Soleimani, the head of the Iranian revolutionary guard, while on a visit to Baghdad in Iraq earlier this month raised the pressure still further. This was the first time the US had used drone technology to kill another country’s senior military commander on foreign soil.

What is the legal framework that covers the use of force on foreign soil? There are three elements: first, that it has been authorised by the United Nations; secondly, that it has the consent of the state in which the force is to be used; and finally, that it is used in self-defence. This right of self-defence depends on the imminence of any threat. The US interpretation of imminence has to date been a good deal more expansive than this country’s, but in recent years there appears to have been a series of subtle shifts taking us closer to the US position. As an example, the then Attorney-General, in evidence to the House of Commons Justice Select Committee in 2015, said:

“One of the things we … need to think about … is what imminence means in the context of a terrorist threat”.


It would be most helpful if, when my noble friend winds up, she could shed some light on the detail of the Government’s current thinking on the definition of imminence.

Even if we were to stick with the narrower definition we have used hitherto, there are still other issues we have to consider. First, there is our supply of information. The United Kingdom operates an outstation of GCHQ in Cyprus to record and analyse messages, information and traffic in the Middle East. It is clear that this information is shared with the US and our other allies, notably through certain RAF stations used by the CIA in the UK: RAF Menwith Hill, RAF Molesworth and RAF Croughton. UK staff based on these stations are said to have what is called a red card, which can be used if they believe the information provided is likely to be used for purposes that would be illegal under UK law. My second request to my noble friend is that she shed a little light on the frequency and extent of the use of red cards. I make it clear that I am not asking her to explain the location or nature, merely the extent of their use.

In addition to the supply of intelligence, there is our commitment of personnel. There is now a high degree of interoperability between US and UK forces operating drones in the Middle East, and how the red card system works there—if at all—is not clear.

Finally and most importantly, there is the role of UK personnel in target selection. A former CIA official has underlined how effective UK forces have been:

“The British have been in Gulf states for decades. They have a reservoir of knowledge, contacts, and expertise that is very important … If you look at what capabilities each side has, that starts to tell you something about precisely where the actionable intelligence is coming from.”


I think my noble friend could usefully comment on the accuracy of that statement when she winds up.

Before I conclude, I will say a word about the wider implications of the increased use of drones and drone technology. From the safety of this House, it is easy to assume that drone warfare affects only the combatants—sadly not. Civilians are nearly always on the front line. One of our excellent researchers at the APPG recently spent time in Yemen. She explained that although drones fly at around 10,000 feet, they can be heard on the ground. Imagine the psychological strain of hearing a drone, from which death and destruction can be rained down at any moment, loitering above your town or village maybe for days at a time; the drones can fly for 17 or 18 hours at a time. How do you go about your daily life? For example, do you allow your children to play outside? Drones’ use may appear to be risk-free to us, but it is far from risk-free to those on the ground.

--- Later in debate ---

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, I congratulate my noble friend Lord Hodgson on securing this debate. I thank other noble Lords for their contributions. I pay tribute to my noble friend and the noble Baroness, Lady Stern, for their excellent work on the APPG on drones.

Following the killing of General Qasem Soleimani by a US drone strike, I know that some concerns have been raised in this place and elsewhere. In particular, my noble friend questions what implications such actions may have for the future use of unmanned aerial systems and their proliferation more generally. So I welcome the opportunity afforded by this debate to clarify Her Majesty’s Government’s position.

Let me start by reiterating a point about the strike on Qasem Soleimani. It is important to be clear that the choice of air platform selected to deliver the strike has no bearing in determining whether the strike was lawful. Article 51 of the UN charter recognises that all states have an inherent right of self-defence, and it is for the United States to say how the criteria for self-defence are met. The UK will always defend the right of countries to defend themselves.

The US case was set out in a letter to the UN Security Council on 8 January. The noble Baroness, Lady Smith, raised the issue of the UK’s relationship with the United States. The United States is a valued ally but, as has been observed in the past, that does not mean that we have to agree on everything. Good friends can reserve the right to disagree on certain things. We are united in our fight against terrorism but, in respect of individual acts, it is for the United States to be responsible for its own actions.

The United States asserted that Soleimani organised the strikes by militia group Kata’ib Hezbollah on 27 December 2019 that targeted a US military base in Kirkuk in Iraq and killed a US civilian contractor. The US is confident that Soleimani came to Baghdad to co-ordinate imminent attacks on American diplomats and military personnel. As one of the commanders of the Quds force of Iran’s Islamic Revolutionary Guard Corps, General Qasem Soleimani certainly had blood on his hands and was behind the murder of numerous United States and British troops.

Before I turn to the use of UAVs and UK practice, I shall deal briefly with the somewhat overlooked but important matter of terminology. The acronym “UAV”, not to mention the popular contraction to “drone”, can lead to an unhelpful and disturbing confusion that struck me when I was preparing for this debate. It is important that we make a distinction. The term “unmanned aerial vehicle” denotes a piece of equipment that, for aeronautical purposes, is flown remotely and with varying degrees of automation and simple functions. However, within the UK Armed Forces, where such a system is armed—as, for example, with the Reaper—the strike function will always be under remote human control and subject to strict operational rules and protocols. It is very important to separate that reality from what is becoming the current fictional lexicon of the video-game mentality. That distinction matters.

Regarding the use of armed unmanned aerial systems and UK practice, respect for international law that governs the use of force is of paramount importance. My noble friend Lord Hodgson referred to mission creep and the noble Lord, Lord Judd, also expressed concerns. I make it clear that our Armed Forces have always known that they are answerable for their conduct on the battlefield. That accountability is not least to Parliament—a matter that the noble Lord, Lord Janvrin, very properly raised. Our Armed Forces have always known that they must conform to the highest standards of personal behaviour and conduct. They have also known that they are bound by the criminal law of England and Wales, and they will always operate in accordance with the laws of war.

The noble Baroness, Lady Stern, raised the issue of accountability. My department is currently in the process of updating the UK Manual of the Law of Armed Conflict —a programme that will consult widely to ensure that our manual remains one of the most authoritative and continues to influence our international partners. At the same time, updating the manual reinforces Her Majesty’s Government’s commitment to the rules-based international system and international humanitarian law.

I will turn briefly to these vital rules under international humanitarian law. I am proud to say that the UK is a leader in that field and continues to uphold the rules-based international system. The Geneva conventions are a cornerstone of international humanitarian law and remain relevant to this day. I know that the noble Baroness, Lady Smith, was particularly concerned about this. I make it clear that the UK encourages all states to apply them in conflict. However, it is not just about ensuring responsibility in the conduct of warfare; there is also a need to ensure that weapons systems such as UAS do not proliferate into the hands of those who would use them unlawfully. That is why the UK applies strict criteria before issuing a licence to export arms, and works with partners, striving to ensure that the rules and regulations remain fit for purpose.

A number of specific points were raised and I will try to deal with them if I can. My noble friend Lord Hodgson and the noble Lord, Lord Judd, raised the issue of embedded personnel. This long-standing practice gives UK personnel valuable experience by operating alongside our allies. However, I reassure your Lordships that our personnel remain subject to UK law and to any policy restrictions placed on them by the MoD. If they are asked to take part in any unagreed operation, they must revert to the MoD for permission.

The noble Lord, Lord Janvrin, raised the important issue of the new scrutiny committee in this new Parliament. I am not being evasive, but that is outside my ministerial responsibilities, and indeed it is outwith the remit of the MoD. However, I will ensure that the sentiments that the noble Lord expressed are indeed passed on.

The noble Lords, Lord Janvrin and Lord Judd, raised the matter of imminence. The legal test of an actual or imminent armed attack must be satisfied, and any action must be necessary and proportionate. The Attorney-General explained the Government’s understanding of the meaning of “imminent” in a speech on 11 January 2017. Consideration will be given to the immediacy of the threat, its seriousness and the likelihood of an attack taking place, among other things.

The noble Lord, Lord Janvrin, and the noble Baronesses, Lady Stern and Lady Smith, also raised the issue of targeting and red cards. A robust system to authorise air strikes is in place and is well proven and tested. This process enables all relevant legal and policy requirements, including international humanitarian law, to be considered and applied. Expert legal advice is integral to decision-making, and all military targeting is governed by strict laws of engagement that are in accordance with UK law and international law, as well as any policy restrictions that the Defence Secretary might specify.

[Lord Hodgson of Astley Abbotts]

I know that my noble friend is doing a valiant job, but one of the problems that we have is: yes, we are getting assurances, but is the red card ever used? Has it ever been used? I am not asking where it has been used or in what circumstances, but whether it has been used.

[Baroness Goldie]

I was just about to observe that the process applies to both UK strikes and those conducted by another nation. However, I am not sure whether it has been used. I shall have to take that back and write to my noble friend.

The noble Baroness, Lady Smith, also raised the issue of target selection. Decisions on, and the necessity of proportionality in, the use of force are complex and highly sensitive. They require policy and national security input, including military, intelligence and legal, but the decision-making process enables all aspects to be considered and ensures that they will.

The noble Baroness, Lady Stern, raised a number of issues from her report. I was able to look at it before coming into the debate, particularly the sections on transparency and accountability. These are important issues and the Government would never seek to evade or dodge them, but she will understand that there are mechanisms to ensure accountability, not least the role of Parliament, the role of committees within Parliament, and the right of parliamentarians to ask questions, hold debates and require Statements from Ministers. However, everything that we do has to be under the umbrella of acting in the best interests of the security of the United Kingdom, our citizens and our personnel if they are engaged in service in different parts of the globe. The MoD has a record of respecting parliamentary accountability and, subject to security constraints, of doing its best to co-operate in that regard.

The noble Baroness also raised the issue of an independent reviewer. With the other processes and mechanisms in place, that might be premature, but, as with everything, the MoD will keep an open mind because, as one contributor observed, the whole process is evolving. As with others, we will certainly always assess what is happening and what we think might be necessary or might improve the situation.

The noble Lord, Lord Janvrin, and the noble Baroness, Lady Smith, also raised important issues relating to the operational use of UAS. One question concerned the use of force outside an armed conflict. As the Government have stated previously, there is no policy on the use of force outside an armed conflict: rather, they have a policy to defend the UK and its citizens against both armed attacks and imminent threats of armed attack.

The noble Lord, Lord Tunnicliffe, raised a number of important points. On the matter of a definition of “autonomous weapons”, there is an ongoing international discussion and the technology is developing fast. The debate is insufficiently mature to conclude a definition. We therefore rely on the clear parameters of international humanitarian law to ensure legality, whatever weapon or weapons system is used.

I have run out of time. The noble Lord, Lord Tunnicliffe, raised a number of other points and I undertake to respond to him in writing. I thank your Lordships for what I consider to have been a very important and useful debate. The UK will continue to support a nation’s right to self-defence and we will continue to uphold international law.

Counter-Terrorism and Border Security Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have added my name to Amendment 34. I begin by apologising to the Committee for not having participated at Second Reading, although I have taken care to read the transcript very carefully.

My noble friend Lord Faulks has given a clear and brilliant explanation of the unsatisfactory nature of the law on treason. Not being a lawyer, I shall not attempt to follow, let alone match, his judicial exposition; I shall come at the issue from a completely different angle. Earlier in the Session, I chaired a one-year Select Committee of your Lordships’ House on citizenship and civic engagement. I am pleased to see at least one member of the committee—the noble and right reverend Lord, Lord Harries—in his place; he will be familiar with quite a lot of what I will say.

Our report was published in March and we have received the Government’s response, although we have yet to hold our concluding debate. An underlying theme of our examination of citizenship and civic engagement in the 21st century was to look at the glue that holds our society together. A major topic debated at length by the committee was values: what is the essence of what this country stands for, which needs to be defended? Of course, it was not for a committee of your Lordships’ House to define irrevocably to which values British citizens should adhere. Indeed, we recommended that the Government should encourage a vigorous debate on this issue, but we offered as a “straw man” of the values we should share,

“democracy, the rule of law, individual liberty, and respect for the inherent worth and autonomy of every person”.

I say in passing that the committee suggested that the Government’s continued use of the term “fundamental British values”, as part of the Prevent strategy, was unfortunate and, in some cases, counterproductive. Since the Government began to use this term, the word “fundamental”—because of its close association with fundamentalism—has assumed greater significance; this issue was raised by my noble friend Lady Warsi at Second Reading. As a result, rightly or wrongly, one section of our population has seen it as directed particularly at them which is an unfortunate development.

Leaving that aside, there are core values; they represent red lines that have to be defended. One of our witnesses, Dame Louise Casey, put it thus:

“You do not pick and choose the laws of this country. The laws that protect religious minorities are the same laws that say I am equal to a man. You do not pick which ones you want. It is not a chocolate box of choice; it is something you have to embrace. If you are uncomfortable with that, I now say that is tough”.


The committee concluded:

“The epithet ‘racist’ has rightly acquired particular force and opprobrium in modern day Britain. Those who seek to continue to promulgate approaches that are not in line with our values, such as the value of equality, have been known to make use of this phrase to rebut criticism of their approach. Where necessary society must be sufficiently strong and confident not to be cowed into silence and must be prepared to speak up. Fear of being labelled ‘racist’ is never a reason for those in authority not to uphold the law, or for citizens not to raise their concerns”.


It is not good enough to look the other way; civic engagement demands more. Whether my noble friend’s amendment is the only—or right—way to help defend these red lines I am not sure. But I am sure that there is an important debate to be had, a debate about the gap—as he referred to it in his remarks a moment ago—and about how we balance our country’s proud record of openness and tolerance with the views of others, often in positions of influence, who openly despise such an approach as weak and wrong and who, given their positions of influence, are able to influence the actions of others and lead them astray. People of influence are able to empower and liberate their followers. This empowerment can be put to good or less good uses. We have seen an example in recent weeks in the United States, with the delivery of letter bombs to prominent citizens whose sole defining characteristic seems to be that they oppose the current Administration.

If there was one key theme from the huge volume of evidence that my committee received, it was that people from all parts of the country and all communities considered that the ground was shifting under their feet, that they increasingly felt rootless and that they wanted to belong. They wondered whether all parts of our society were prepared, in the spirit of compromise and tolerance so essential to the well-being of this country, to subjugate some of their personal preferences and beliefs in the cause of the greater good of society as a whole, or whether, as a result of speeches or actions by those who did not share our values, too many now felt empowered and liberated to attack our society, the state or the Crown and thus, in the broadest sense, commit an act of treason.

To conclude, we took evidence from Cardinal Vincent Nichols, the Cardinal Archbishop of Westminster. He addressed us thus:

“If we keep picking the fruits of tolerance and not attending to the roots of the tree, it disappears … tolerance becomes cynicism, cynicism becomes indifference, indifference hardens and we end up going down the road that leads to hate incidents and hate crimes”.


It is to try to avoid this country going down that very sombre road outlined by the Cardinal Archbishop that I have put my name to my noble friend’s amendment.

[Lord Bethell (Con)]

My Lords, I too thank my noble friend Lord Faulks for moving this amendment. I also thank my noble friend Lord Hodgson for supporting it, and I am glad to support it myself.

Many Peers spoke at Second Reading about the extraordinary changes to warfare, terrorism and espionage, and the growing risk of home-grown participants and recruiters. There is clearly a need for a modern response to these challenges, and I think the Bill does a huge amount to deal with them, but I wonder whether it goes far enough.

On the legal case for a revival of the treason law, my noble friend Lord Faulks and others have put the arguments much better than I can. I also recommend the paper by Policy Exchange, Aiding the Enemy, which has an enormous amount of support from senior figures in the law and the police. However, my angle is slightly different. I am coming at it from the point of view of cohesion and the need in this country to ensure that there is a really strong sense of trust in our communities.

We are living with a huge amount of immigration—something that I am really proud of and glad to see happen. There is an almost post-modern attitude among many people towards even the concept of a nation state, and a sense of “anywhere-ness” among a lot of people. The noble and learned Lord, Lord Falconer, the former Lord Chancellor, argued in 2010 that the law of treason was no longer appropriate because people might feel their strongest allegiance to be towards their religion or even towards Greenpeace. He said that we live in an era when the freedom of the individual is put above practically everything else.

That thinking, I am afraid, has contributed to our becoming embarrassed when talking about big ideas such as treason, betrayal and allegiance. We have lost a sense of what is acceptable and what is not. It is acceptable to criticise your country and to obey your God or to follow the tenets of your ideology, but it is not acceptable to aid one’s country’s enemies in their attacks. I think this confusion has contributed to 900 people, many of them young and naive, fighting for an enemy, and we are now living with those consequences.

I was greatly struck by the story of Kimberley Miners, who travelled to Syria and recently returned. She said of her experience of living with ISIS:

“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted”.


I feel a mixture of enormous compassion for her and enormous anger that she could have been so stupid in this decision. I cannot help feeling that, if our citizens and those who chose to live here had a clearer sense of where the boundaries lay, naive young people would not have made such stupid mistakes. We could then sleep with confidence that our neighbours, whatever their views and beliefs, ultimately have a peaceful intent towards their country, and further damage to trust in our communities could be avoided.

By way of conclusion, a treason law should not become a coercive or reactionary measure, and I pay tribute to the thoughtful briefings on the Bill from Liberty and the Open Rights Group, and to the contributions of my noble friends Lady Warsi and Lord Ahmed during Second Reading. But there is social merit in a narrowly drafted measure that makes clear our duty not to aid one’s country’s enemies in their attacks. That is why I am pleased to support this amendment.

Armed Forces Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 27th April 2016 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the courts of this country have long had extra-territorial jurisdiction to try in this country offences of murder, manslaughter, piracy, treason and certain other, more obscure offences. However, they do not have extra-territorial jurisdiction for sexual offences. Amendment 11 would give the courts of this country jurisdiction to try somebody in the ordinary civil courts, if that person is subject to service law or is a civilian subject to service discipline, who commits an act in a country outside England and Wales that would be a sexual offence. Various sections from the Sexual Offences Act 2003, which I have quoted, relate to serious sexual offences. That would mean that a sexual offence committed abroad would be subject to the protocols in this country that now exist between the Director of Public Prosecutions and the Director of Service Prosecutions and could be tried in the ordinary civil court, as opposed to the courts martial. Courts martial are now established courts, with centres at Bulford, Catterick and Colchester. A person who commits a sexual offence who is subject to service law abroad now could be brought to this country and tried for the sexual offence by way of court martial but could not be tried in the ordinary courts. That is the purpose of Amendment 11: to extend extra-territorial jurisdiction to cover sexual offences.

As for election for trial in the UK, my amendment suggests that such a person, who is subject to service law and has committed an extra-territorial offence that could be tried by a court martial at Bulford, Catterick or Colchester, could elect to be tried in the ordinary courts if he or she so wished. Of course, he or she would have to take advice on what was more appropriate, but it would mean that he or she would have the opportunity to be tried not by officers but by 12 ordinary jurors in this country. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

Will the noble Lord, Lord Thomas, clarify one thing? I am a member of the Secondary Legislation Scrutiny Committee and this past week we have been looking at the agreement with the Government of Kenya for the provision of two training areas. There are various changes taking place within that, and one is that all Armed Forces personnel going there will have to obtain visas in future. How, then, does what the noble Lord proposes tie in with the provisions of Kenyan law for people who are in that country? Does our military discipline law come ahead of Kenyan domestic law, and how does that tie in with what he is proposing in terms of its extension and its further extra-territorial application?

[Lord Thomas of Gresford]

When British service personnel operate abroad and are stationed abroad, there is an agreement made with the Government of that particular country. A protocol is brought about whereby decisions can be made according to the machinery agreed in that protocol about whether a person committing an offence in, for example, Kenya, should be tried by the local courts or by court martial. Obviously, that would apply to all cases of offences that are committed in Kenya which would be contrary to its law. In all probability, as has happened in Germany, very much would depend on whether the local population was involved. For example, under a protocol with the Kenyan Government, the rape of a Kenyan woman would almost certainly be tried in a Kenyan court. On the other hand, if it involved personnel who were on duty there together, it would almost certainly be dealt with under the protocol by the service disciplinary system. I am proposing that if it amounts to a serious sexual offence, or an extra-territorial offence such as I have described, it could be heard in this country.

--- Later in debate ---

[Earl Attlee]

My Lords, with these issues, it is always difficult to measure casualties. That is not necessarily an argument against the amendment from the noble Baroness. Just to be really helpful to the Minister, of course, there are lawful combatants and there are unlawful combatants. So that is another issue.

[Lord Hodgson of Astley Abbotts]

My Lords, as the noble Baroness, Lady Smith, kindly said, I tabled a similar, rather less focused, amendment in Committee on 3 March and we had a useful debate then. I was grateful for my noble friend’s response, and we explored a number of the challenging aspects of this difficult matter. Now we have this more focused and more pointed amendment, redrafted in the light of those discussions and of the subsequent information that has been made available. Unsurprisingly, I am therefore inclined to support it.

In his reply to the debate, my noble friend’s argument for being unwilling to consider the amendment rested, I think, on two major planks: on the one hand, the inflexibility resulting from enshrining this sort of requirement in primary legislation; and, on the other, operational confidentiality. These two arguments were backed by a statement of general good intent on transparency. My noble friend will appreciate that I absolutely accept his sincerity on these matters, but operational confidentiality could become an elastic concept, capable of being interpreted to cover a pretty wide range of situations. When backed only by a statement of intent without any statutory teeth, this elasticity could be increased still further.

My concern about civilian casualties arises from two points. The first is the long-term fabric of the society. If women and children are traumatised by violence, it may take a generation to rebuild a stable society and it must be in this country’s interests to establish and maintain stable societies wherever possible. Secondly, and no less importantly, civilian casualties must be one of the best recruiting sergeants for extremists. If I see my village wrecked and my family and community blown apart, I am unlikely to be sympathetic to the people who have caused my world to be turned upside down.

At the core of my concern are the figures given by the noble Baroness about the discrepancy between what Airwars has said about coalition casualties, excluding the Russian casualties, of which I think there are a great deal more—some 3,000 or more. This leads me to believe that somewhere something must be going wrong. Airwars has got its figures wrong, or the coalition members are looking the other way, or the procedures for identifying and recording civilian casualties are faulty. This country, which has now carried out some 600 air strikes in Iraq and Syria and flown more than 2,000 combat missions against Daesh, should surely have a keen interest in ensuring that the truth is established and publicised. Our international reputation demands no less. This amendment, if accepted, would help in that process.

I conclude by saying that I hope my noble friend will forgive me if I gently chide his department. As a result of the issues raised in that earlier debate in Grand Committee, which I referred to, which are also the raw material of our discussion this evening, I wrote to him raising a series of specific questions. My letter was dated 15 March, and I am afraid that I have yet to receive a reply. Will he be prepared to act as the man from Dyno-Rod? If so, I would be extraordinarily grateful.

[Lord Touhig]

My Lords, I will be very brief. When we considered an amendment very similar to this in Committee, I said that on this side we certainly welcomed the aspirations that motivated it—the noble Lord, Lord Hodgson of Astley Abbotts, tabled it at that time—but we certainly had doubts that it was the best way of dealing with reporting on civilian casualties. I fear that although this amendment is much more focused, as he mentioned, those doubts remain.

Of course it is right to report on civilian casualties caused by air strikes, but we should also be made aware of all civilian casualties, including those caused by the actions of ground forces. I can only repeat a key point I made in Committee when I stressed that reporting on civilian casualties is not an Armed Forces role alone but needs to involve the Foreign and Commonwealth Office and the Department for International Development. This is a matter for a cross-government approach that seeks an agreement on how to report on civilian casualties caused in a conflict in which our Armed Forces are involved. However, it must be done in a way that that gives everybody confidence, and such an approach must also ensure that we maintain operational security. That is important; I am not sure whether the noble Lord who has just spoken feels it is quite that important, but certainly that point was made, rightly, by the Minister in Committee.

We do not need primary legislation to achieve the aims of this amendment, but if the Government were minded to consult on finding a better way to embrace the aims of the amendment and to consult so that we could find a solution which we could all support on properly reporting on civilian casualties, we would certainly want to co-operate with them on that. However, this amendment is not the solution and we will not support it.

Armed Forces Bill

Lord Hodgson of Astley Abbotts Excerpts

Thursday 3rd March 2016 Grand Committee

Moved by

[Lord Hodgson of Astley Abbotts]

22A: After Clause 17, insert the following new Clause—
“Reporting obligation on overseas deployments (civilian casualties)
(1) The Royal Air Force Commander responsible for review of reports on civilian non-combatant casualties submitted to the Ministry of Defence in connection with UK deployments overseas shall report to the Minister for the Armed Forces, at least once every quarter or at any more frequent intervals as the Secretary of State may specify, on—(a) the number of reports on civilian non-combatant casualties submitted by independent bodies during the period since his or her last report;(b) the number of reports on civilian non-combatant casualties submitted by the civilian casualties tracking unit in that period;(c) the number of reviews on civilian non-combatant casualties carried out in that period;(d) the outcome of such reviews; and(e) the sum and allocation of funding for any awards made as a result of the civilian casualty review procedure in that period.(2) A report under subsection (1) shall include—(a) a copy of the relevant civilian casualty review procedure;(b) working definitions of the terms “civilian” and “combatant”; and(c) the standard operating procedures in place to enable the review of reports of civilian non-combatant casualties.(3) In this section “UK deployment” includes any airstrikes carried out by UK personnel operating manned or unmanned aircraft remotely from the United Kingdom or United States.(4) On receipt of any report under subsection (1), the Minister for the Armed Forces shall—(a) lay a copy of the report before Parliament, and(b) lay a copy of the Government’s response to the report before Parliament, making particular reference to the operation of the civilian casualty review procedure, and any relative increase in reports, reviews or awards.”

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I sense that the horse is heading for the stable, and at an increasing rate, so I will be as brief as I can. I apologise to the Committee for not having taken part in proceedings before, but I have a particular interest in this area. The Committee should be aware of my involvement with the All-Party Group on Extraordinary Rendition and the All-Party Group on Drones.

In that connection, I ask my noble friend to thank his colleagues in the Ministry of Defence for arranging for us to go to RAF Waddington to see the operation of the drones there. It was exceptionally impressive. I took away three important things. One was the care being taken, with the forces on the ground calling in the strikes being balanced by people in the cooler atmosphere of RAF Waddington, who were able to provide the right balance.

Another was the stress on personnel, in the sense that personnel left their homes on the base, where the children were not doing their homework and the dog had to go to the vet, and went to the place they operated the drone from. They might, over the course of the next six or eight hours, have had to do some exceptionally unpleasant things that might result in the death of a fellow human being, then drive home again and, 10 minutes later, be back with the dog still needing to go to the vet and the kids’ homework still not being done. It is a very stressful situation, and the care that the ministry was taking to make sure that everyone’s mental health and well-being were being properly looked after was impressive. Last of all was the international nature of the operation in the sense that the operations at RAF Waddington are then passed to the Creech Air Force Base in Nevada. As the RAF officer explained to us, if you are being asked to get up at 2.30 am to sit in a hut and make these sorts of decisions, it is quite destructive for your mental health: it is much better if it can be passed to somebody in another part of the world. It means that there is this rotating situation which has its own issues, stresses and strains.

With that background, I turn to my amendment and the reasons for it. It is, of course, a probing amendment. Casualties are an inevitable and ghastly by-product of war. Every casualty is a tragedy, but civilian, non-combatant casualties are probably doubly so. I say that for two reasons. First, the long-term damage to the fabric of society if women and children are traumatised takes generations to recover from. Therefore, we need to be particularly careful of the damage that we might be doing to those groups. Secondly, and no less importantly, mistakes—casualties among civilians—are one of the best, possibly the best, recruiting sergeants for the extremists. People who have seen their village wrecked, their families or communities blown apart, are unlikely to be sympathetic to the cause that has resulted in this unfortunate episode.

We have now reached the three-month anniversary of the commencement of Parliament’s authorisation of military activity in Syria. We were promised a quarterly progress report to update both Houses, as a way of providing some form of parliamentary oversight of the mission against Daesh. I am not sure that that has yet been provided, but no doubt my noble friend could tell me when he comes to wind up.

Accountability and transparency are important aspects of this country’s military activities in the Middle East. They play a critical role in ensuring continuing public support at home for a policy that is bound to have its controversial aspects, particularly in the maintenance of popular support in our minority communities. However, accountability and transparency are also important for the maintenance of this country’s reputation abroad. We should be giving an example by setting standards that our allies will emulate, that will shame our enemies and that will give third parties caught up in the crossfire some confidence that these terrible events—which have, in many cases, shattered their lives—have not been undertaken capriciously or without due thought.

This amendment seeks to build on the commitment made by Penny Mordaunt in the other place on when she said that Airwars, the NGO that provides surveillance or information about civilian casualties,

“has been proactive in submitting written reports of civilian casualties and we are grateful for its efforts and for the value that they add. Each case has been individually reviewed and it has been demonstrated that the civilian casualties were not caused by UK activity. Our targeting processes are extremely robust in this respect and in others, but I would welcome any further ideas about how value may be added. I have committed to review any reports of civilian casualties and I have oversight of the whole process, including compensation”.—[Official Report, Commons, 29/2/15; col. 672.]

She gave further reassurance in reply to a Written Question on 2 February this year when she said:

“Any credible concerns or evidence relating to the possibility of civilian casualties caused by air strikes may be submitted to the Ministry of Defence Ministerial Correspondence Unit”,

and gave an address and email address.

This need to clarify and commit to a UK standard is particularly important as it appears that yet another remote engagement—in Libya—is getting under way. Further, there are also indications of new collaborative working with partners, in particular the United States, which have emerged in recent weeks. Most recently, as has been reported in the press, the Secretary of State has authorised the use of RAF Lakenheath for US air strikes in Libya on the—I have to say uncertain—legal basis that “it makes us all safer”.

The UK can and should lead here in forging a model civilian casualty review procedure and a model procedure for dealing with compensation claims as well as in standards of transparency to show how this is working in practice. This might act as a model for Russia or, more likely, for other EU states and the United States in and outside the traditional battlefield.

The UK has carried out 600 air strikes in Syria and Iraq and flown more than 2,100 combat missions against Daesh. The Defence Secretary has stated that the UK is probably the second most important part of coalition air activity in strikes as well as in surveillance and intelligence activity. According to the NGO Airwars, there are credible reports that up to 952 civilian casualties have been caused by coalition air strikes, excluding Russia. The NGO puts that figure at between 3,200 and 3,800. Eleven out of 12 coalition members, including the United Kingdom, deny any civilian casualties. This is unprecedented in a major military engagement and naturally invites questions about how civilians are being classified, what the onus of proof is, how battle damage assessments are being undertaken in the absence of ground troops, what sort of procedures are in place to make sure that credible allegations of civilian casualties are reviewed rigorously with sufficient independence, what discussions and agreements there have been about these matters with coalition partners, whether there is a realistic chance of a co-ordinated or collective response, what are the implications of joint operations and whether the UK has a non-combatant casualty cut-off value like the US.

As far as the UK is concerned, we have a good record on civilian casualties and the disclosure of relevant information. The UK has second place in Airwars’ transparency table, which is a matter on which the MoD deserves congratulation. However, I am not sure that it is enough to announce that there have been no civilian casualties caused by 600 air strikes for which we have been directly responsible—and there will be many more which we have supported—without additional information and disclosure of relevant policies and procedures.

Subsection (1) of the proposed new clause would impose a new quarterly reporting obligation on the responsible commander to report to the Minister in order that she can report to Parliament. The report need not be long—it can be quite short—but it must include the basic statistics outlined in the amendment.

Proposed new subsection (2) goes a little further. So that we can make sense of the report in proposed new subsection (1) and to promote the principles of transparency and accountability to which, no doubt, the MoD is committed, the report must include three key sets of documents: a copy of the relevant civilian casualty review procedure; working definitions of the terms “casualty” and “combatant” and the standard operating procedures in place to enable the review of reports of civilian casualties. Most of these terms are drawn from the ISAF model used in Afghanistan and do not come from the MoD commitment in relation to the mission against Daesh.

Several parliamentary Questions have been tabled in the House of Commons which suggest that a policy or procedure is under way, or at least is at an advanced stage of development. For example, the Minister for the Armed Forces has said that the Ministry will “analyse the risks” in any potential air strike in advance and,

“every strike is subject to careful post-mission scrutiny”.

However, it seems likely that the information I am seeking already exists, although possibly under a different or updated name. I would welcome my noble friend’s clarification on this point.

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[Earl Howe]

My Lords, I am grateful to my noble friend Lord Hodgson for introducing his amendment, which would, as he explained, create a legislative obligation on the department to report civilian casualties following RAF operations, including sharing the details of investigations with Parliament. I recognise that this is a probing amendment but I hope to show my noble friend that his concerns are recognised and being properly addressed.

I make it clear at the outset that the MoD takes very seriously—and always will—any allegations of civilian casualties. The Defence Secretary committed to review all claims of this nature. We have robust processes in place to review reports of civilian casualties and to launch investigations where appropriate, and we will continue to consider all available credible evidence to support such assessments.

It is important for me to emphasise that the Ministry of Defence takes all feasible precautions to avoid civilian casualties when conducting any form of military operation. All missions are meticulously planned to ensure that every care is taken to avoid or minimise civilian casualties, and our use of extremely accurate precision-guided munitions supports this.

We have a robust process in place to authorise air strikes that is tried and tested. All military targeting is governed by strict rules of engagement in accordance with both UK and international humanitarian law. Of course, the men and women of our Armed Forces are highly trained, including in the law of armed conflict. I should also make it clear that we will not use force unless we are satisfied that the use of force is both necessary and lawful. When we carry out a strike, we carry out a full assessment to determine the damage that has been caused, specifically checking very carefully whether there are likely to have been civilian casualties.

I can assure the Committee, lest there is any doubt, that the Ministry of Defence is committed to transparency as far as possible. We have been very open and transparent about the strikes conducted in Iraq and Syria. They are reported regularly online two or three times a week. These reports explain where the action has taken place and what effect has been achieved in the fight against Daesh. However, I hope that the Committee will agree that it is also paramount that we maintain personnel and operational security. This can include not revealing details about our targeting process, which may endanger personnel and our ability to operate.

Furthermore, while a requirement in primary legislation to publish data on a regular basis may be seen as a means of holding the current Government to account—and, for that matter, future Governments—it may also on occasions be a very inflexible tool which is soon out of date and redundant. As I have made clear, the MoD has clear processes and procedures to limit civilian casualties, and the principle of openness and transparency on this issue is something which the MoD and I strongly support. Where information is not disclosed, it is for very good operational reasons.

The noble Lord, Lord Touhig, asked about regular reports on Operation Shader, which, as he knows, is the counter-Daesh operation in Iraq and Syria. The Government’s first quarterly report on Syria was provided to the House of Commons by the Secretary of State for Foreign and Commonwealth Affairs on 16 December last year. The Secretary of State of DfID, my right honourable friend Justine Greening, provided a second quarterly report on 8 February this year. I cannot be specific about the date of the next report but it will be issued in due course.

I will write to the noble Baroness, Lady Smith, on the particular question she raised and to my noble friend in respect of those of his questions that I have not covered. In the light of what I have said on this matter, I hope my noble friend will agree to withdraw his amendment at this stage.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to all who have participated in this short debate—the noble Baroness and the noble Lord, Lord Thomas of Gresford. Apropos of his comment, I of course understand that this is a coalition, but I am thinking, “Physician, heal thyself”. We start by trying to make sure that the unpleasant things that our personnel are doing on our behalf are properly corrected first, and then, by setting standards, maybe our allies will follow.

I thank my noble friend very much for his full reply and his promise to follow up on the points that he has been unable to answer now. I hope that I made it clear that from our visit to RAF Waddington we were well aware of the very considerable care that has been taken to make sure that those on the ground are balanced by the cooler heads further away from the point of action. I understand the question of inflexibility. This is a probing amendment, but it was helpful for us to have a debate this afternoon, and I look forward to hearing the follow up in due course. In the mean time, I beg leave to withdraw the amendment.

Amendment 22A withdrawn.

Commonwealth War Graves Commission

Lord Hodgson of Astley Abbotts Excerpts

Monday 22nd June 2015 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I, too, thank my noble friend for initiating this debate. I wholeheartedly associate myself with his comments and those of others about the importance of the role of the Commonwealth War Graves Commission and the brilliant and imaginative ways in which it fulfils its obligations.

I will make three quick points. First, I studied military history at university and an important element in the study of conflict is the examination of the collateral damage to society: the destruction of many family units, of course, but, more importantly, the damage to civil society as a whole, which can take generations to repair. While of course it is absolutely vital and right that we should continue to commemorate the personal sacrifice of millions, in my view the commission has an equally important role in reminding us of our history. After all, those who do not remember the lessons of history will be condemned to repeat them.

Secondly, my noble friend Lord Forsyth and other noble Lords referred to the scale of the sacrifice. My military history professor had a statistic that I will share with the House: if the British and Commonwealth war dead from the First World War alone were lined up in column of route three abreast, as the head of the column passed the Cenotaph in London, the rear would be somewhere between Middlesbrough and Newcastle.

Thirdly and finally, because what gives the work of the commission its poignancy is so personal and so tightly woven into our society, I will give a personal example. In so doing, I am very pleased to be able to follow the noble Viscount, Lord Slim. My godmother’s father was killed by a Turkish sniper at Gallipoli. Colonel Palmer, as he was called, was commanding a battalion of the Royal Warwickshire Regiment. One of his junior officers was a certain Lieutenant Slim. Colonel Palmer’s body was lost after the Allies evacuated the Gallipoli peninsula so his only memorial is on the big memorial at Anzac Cove. Lieutenant Slim, of course, went on to other and greater things.

Defence Reform Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 5th February 2014 Grand Committee

Moved by

[Lord Hodgson of Astley Abbotts]

10: Clause 5, page 5, line 3, at end insert “, unmanned aerial systems, distributed common ground systems, ground control and other stations used to support the operation of unmanned aerial systems”

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, in moving Amendment 10, I will speak at the same time to Amendment 11. I have tabled a series of amendments to the Bill, which I have formed into two groups: this one and a second group comprising Amendments 14, 15 and 16, which we shall come to later on. The purpose of both groups is to shed light on an issue that is causing rising public concern: the increasing use of what have been variously called “drones”, “unmanned aerial systems”, and “remotely piloted aircraft systems”. I would argue that the fact that there is no agreed terminology to describe these devices is an indication of the very rapid rate of change and development taking place and, perhaps, of the extent to which the appropriate level of democratic oversight, control and challenge is lagging behind.

It was interesting to note the amount of public and press interest—including international press interest—when I tabled these rather modest amendments to be debated in the Moses Room, which shows that this is a very live issue for many of our fellow citizens. At this stage, these are all probing amendments, but there are serious issues of public policy at stake about which I hope my noble friend will be able to reassure all Members of the Committee. I am grateful to my noble friend Lady Miller of Chilthorne Domer, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, who put their names to these amendments. I look forward to hearing their particular concerns and contributions later in the debate.

As I said, there are two groups of amendments, but they focus on one issue. I will give some general background which will set both groups in context and enable me to be a great deal briefer when we come to the second group. Finally, before doing so, I need to declare for the record my interests in this and allied fields. I am a member of the APPG on Drones, I am treasurer of the All-Party Group on Extraordinary Rendition and I am a trustee of Fair Trials International. With that—to horse.

Public concern about drones takes, I think, two forms. The first lies in what one might describe as the here and now. The public are concerned about the collateral damage arising from what appears to be an increasingly prevalent—some would say indiscriminate—use of drones. To illustrate, I can do no better than to quote from a letter sent to all Members of your Lordships’ House by Reprieve. It describes a trip to Congress in the United States by Rafiq ur Rehman, a schoolteacher from Pakistan, who was accompanied by his children Zubair, 13, and Nabila, nine. The family were there to talk about 67 year-old Mammana Bibi—Rafiq’s mother, the children’s grandmother and the local community’s midwife. She was killed by a CIA drone strike in October 2012 while picking okra in a field near her home. Zubair and Nabila were also injured when the missile hit and had to be treated in hospital for shrapnel wounds. Speaking to members of Congress on Capitol Hill, Rafiq described his mother as follows:

“She was the string that held our family together. Since her death, the string has been broken and life has not been the same … My family no longer gathers together like it did when my mother was alive … they are afraid to visit because the drone might then kill them, too”.

I leave it to wiser heads than mine as to whether this is a good way to win over uncommitted hearts and minds.

Drones do not act in a vacuum—they act on information supplied to them. The public are anxious to know who is supplying this information and how it is being supplied. The legal context may be simply stated—and, in saying that, I am benefiting from advice given by Jemima Stratford QC. Individuals in a war are entitled to kill each other. That is the doctrine of combatant immunity. In addition, both the law in this country and international law recognise the status of some individuals as lawful combatants engaged in international armed conflict. However, killing an individual outside that framework is, to put it starkly, murder. Assisting in the killing of an individual outside that framework is assisting in an act of murder. The recent killings by drone strikes in Yemen and Pakistan, neither of which is at war with the United Kingdom or the United States, have increased public concern.

That is the here and now. However, public concern is beginning to take on another form. What does the future hold? This year we are commemorating the outbreak of the First World War, 100 years ago in the autumn of 1914. When the young men rushed enthusiastically to the recruiting offices that autumn, they had no real understanding of the killing power of the modern machine gun. If they had, there were fears that their enthusiasm might have been somewhat tempered. We, however, know about the capabilities of the machine gun and the capabilities and consequences of the atom bomb. Moreover, with the technical developments in television, by the 1970s war was being brought into our front room.

Some of you may recall an American singer-songwriter and satirist called Tom Lehrer who was also a professor of mathematics at Harvard University. He said that for the next war, the songs must be written in advance. His contribution went like this, although I shall not sing it:

“So long, Mom, I'm off to drop the bomb

So don't wait up for me

But while you swelter down there in your shelter

You can see me on your TV

While we’re attacking frontally

Watch Brinkley and Huntley

Describing contrapuntally

The cities we have lost

No need for you to miss a minute

Of the agonising Holocaust”.

Humorous though the song was, that trend has been accentuated by the development of the mobile phone—and especially of the mobile phone with inbuilt camera. As a consequence, for quite understandable operational reasons, the Armed Forces have put restrictions on mobile phones on the battlefield.

Here lies the first critical point. The camera and the mobile phone are, in their own way, rather effective peacekeeping devices. The Holocaust occurred off-camera. Today, however, if a soldier fires a shot and it’s on the “BBC News” that night, our political process—albeit slowly, imperfectly and often in the wrong way—begins to engage. Had there been pictures and tweets about the carnage in the autumn of 1914, how long would the war have lasted?

Here lies the second critical point. That door to the free flow of information—arguably so important to the preservation of peace—is slowly swinging shut. A drone is entirely anonymous. It needs no boots on the ground. Yet the damage it does is no less devastating than that done by the man with a machine gun. These amendments therefore are designed to shed some light on these slightly murky points. As the Prime Minister said, sunlight is the best disinfectant.

After those background comments, I turn to this first group, concerned with jurisdiction and seeking to make amendments to Clause 5, entitled “Jurisdiction of Ministry of Defence Police”. The Ministry of Defence Police Act was passed in 1987. That may seem fairly ancient—it is some 25 years old. However, it is a mere stripling in comparison to the Visiting Forces Act that we shall come to in a minute, which was passed more than half a century ago in 1952, or the status of forces agreement passed a year earlier.

Amendment 10 extends the jurisdiction of the Ministry of Defence Police by inserting after the word “hovercraft” additional words about,

“unmanned aerial systems, distributed common ground systems, ground control and other stations”,

as on the Marshalled List. The purpose of the amendment is simple. It is to ensure that drones cannot be included as a type of aircraft, and to recognise that they have an entirely separate legal distinction and terminology. The amendment selects the phrase “unmanned aerial systems” as a preferred descriptor. While I have no biblical adherence to this phrase, there is the challenge that there is no current legal definition of “aircraft” in the existing Air Navigation Order 1970; it contains only a classification.

Whatever descriptor is used, it is nevertheless important that it makes clear that a drone is not an aircraft—a word which, to the public mind at least, implies an aerial vehicle with at least one person inside it. The effect of this amendment would be that the MoD Police jurisdiction unquestionably extended to drones and the like, so they would not in future fall through the gaps in legislation to some netherworld, out of sight and mind. Amendment 11 runs in parallel and extends the power of the MoD Police to contractors operating under the provisions of the Bill—as we discussed in Committee on Monday.

To conclude, whatever one’s views of the morality or efficacy of drones, we need to ensure that the details of their operations are properly recorded and that the MoD Police are unquestionably able to investigate and follow up issues that arise. In an editorial in the Financial Times on Monday—the first day of Committee —about Edward Snowden and GCHQ, a parallel but not identical case, the editor wrote that,

“it is essential the public know that British law is up-to-date and that the checks surrounding GCHQ are proportionate and fit for the complexity of the digital age”.

These amendments seek to achieve the same in respect of the Ministry of Defence: that the law is up to date and the checks proportionate. I beg to move.

[Baroness Stern (CB)]

My Lords, I am very grateful to the noble Lord, Lord Hodgson, for that excellent and wide-ranging exposition. I begin by declaring an interest; I am one of the vice-chairs of the All-Party Parliamentary Group on Drones, established just over a year ago in October 2012 and very active ever since. The core purpose of the group is to examine the uses of drones—which the group decided to call “unmanned aerial vehicles”—by Governments for domestic and international military and civilian purposes. Among the objectives of the group are to examine the legal and ethical frameworks that govern the use of drones, raise awareness of the human rights issues in the use of drones and look for increased accountability and transparency in the use of drones by the United Kingdom domestically and internationally. It is in that context that, as a member of the all-party group, I put my name to these amendments.

I stress absolutely that the all-party group is not opposed to drones per se—far from it. Drones technology has many uses. I heard recently from my noble friend Lord Sandwich that drones are a godsend to archaeologists in Afghanistan because they can locate what is under the ground and pinpoint where archaeologists should dig to find more antiquities. That is a benign and helpful application of the technology. My noble friend Lord Ramsbotham—General Ramsbotham—has educated me about the indispensable role of drones on the battlefield. The APPG is concerned not with opposing drones but with transparency: ensuring that Parliament is well informed and that information about the development and use of drones is put in the public domain so that we may debate the many issues that arise.

Today, we are concerned with military use. As noble Lords will know, a large and wide-ranging law framework governs military activities and weaponry internationally and domestically. However, as the noble Lord, Lord Hodgson, said, as yet no legal definition exists of drones or unmanned aerial systems, and it is difficult to see how there can be governance of drones before they are defined. Currently they are treated by the MoD as aircraft and their special nature is ignored. This amendment gives us an opportunity to consider the terminology and make it clear that it is completely inadequate to lump drones in with aircraft.

--- Later in debate ---

[Lord Astor of Hever]

My Lords, we will cover the noble Lord’s second point when we discuss later amendments and I think that I can give him an assurance on that when we discuss the later amendments. As regards his first point, this Bill is not an appropriate vehicle for the issue. He raises a very important point, but there is no need for additional laws. The existing ones are sufficient.

[Lord Hodgson of Astley Abbotts]

My Lords, I thank my noble friend for his characteristically thorough reply to the points made and I thank my co-signatories for their support. I emphasise to my noble friend that I do not think any of the signatories are against drones. We understand that they are valuable and we do not wish to expose the lives of soldiers, sailors and airmen to unnecessary risk. However, we want to know what is going on. Of course we understand that every effort is made to avoid casualties. This is not a trigger-happy amendment; it is about information, control and transparency. I was glad to hear that my noble friend’s legal advice is that the term “vehicles and aircraft” covers every aspect of drones and there is therefore no gap in this regard. It is important to have that on the record for the future.

I am grateful to my noble friend Lord Roper for drawing attention to some of the complexities of this issue and to the noble Lord, Lord Judd, for his important comments about dispassion. Some element of personal responsibility may become deadened by distance from the point at which the operation is taking place. The noble Lord, Lord Palmer of Childs Hill, very rightly said that this was not the appropriate place for the amendment. He is right, but when the bus comes along you get on board because who knows when the next bus will come along. As he rightly said, there are very few defence Bills and it is important for us to have a chance to debate things that have emerged since the previous occasion.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

14: After Clause 8, insert the following new Clause—
“Reporting obligationsReporting obligation on contractors
In providing any defence procurement services, the contractor shall—(a) report annually to the Secretary of State or at any more frequent intervals as the Secretary of State may specify on—procured under the arrangements set out in section 1; and(i) the technical characteristics;(ii) capabilities; and(iii) use of equipment and services,procured under the arrangements set out in section 1; and(b) ensure that any person who provides provision of goods or services to a contractor or to the Secretary of State for the purposes of DE&S pursuant to the arrangements set out in section 1 provides the contractor with all information necessary to carry out the contractor’s reporting obligation under paragraph (a).”

[Lord Hodgson of Astley Abbotts]

My Lords, I shall speak also to Amendments 15 and 16. The background to this group is the same as that for the first group, Amendments 10 and 11, and I shall not weary the Committee by repeating it. Amendments 10 and 11 were concerned primarily with jurisdiction—who is entitled to inquire; the second group is concerned with scrutiny—what is done with the information so gathered. This scrutiny will be achieved by inserting new clauses into the Bill.

Amendment 14 obliges contractors to inform the Secretary of State for Defence what procured goods and services are capable of and how they are being used. The amendment has been drafted to ensure that the reporting obligation will automatically broaden to cover any new technological developments in the future. We have heard from noble and gallant Lords about the various kinds of drones—surveillance drones, attack drones and drones that will fight other drones that are now being developed. It is important that the reportage also includes them.

Amendment 15 seeks to improve scrutiny. It does so in two ways: first, it inserts a new section into the Visiting Forces Act 1952 to create a mechanism for scrutinising overseas forces operating in the UK or within UK-operated facilities. The amendment includes a requirement for the RAF commander responsible for liaison with visiting forces to report at least annually to the Secretary of State and a list of factors which are to be reported upon.

It is worth while just to reflect on the position of the luckless RAF commander responsible for liaison. For a sterling officer to be the nut in the crackers—one side of the crackers being GCHQ and the UK Government, and the other being the US Government, the CIA and the National Security Agency—is an unenviable position to be in, and not a career-enhancing one if you are going to rock the boat and possibly say things that will be unpopular. Therefore, his position is very difficult, but that is by the by. However, we were tempted to buttress his position by defining the makeup of the scrutiny group to include, as it says, a member holding high judicial office—such as a judge—and a person who is capable of understanding the technology being used. The amendment defines the right of access to premises, to receive documents or to interview personnel in pursuance of the committee’s duties.

The second method by which this amendment improves scrutiny is by imposing a duty on the Interception of Communications Commissioner to report at least annually on any activity subject to the Regulation of Investigatory Powers Act 2000—RIPA. My noble friend Lady Miller has put down and had answers to a number of parliamentary questions on this particular topic, so I will leave the field clear for her to have a clean sweep in a minute or two.

Finally, Amendment 16 concerns the use to which these reports should be put. A copy of them should be laid—no doubt with redactions—before Parliament, a copy of reports, hopefully without redactions, should be laid before the Intelligence and Security Committee, and there would be a government response to any concerns raised in those reports.

Taken as a whole, these amendments are not designed to reveal details injurious to our national security or that of our allies. I recognise the delicate balance that needs to be struck in that regard. However, they are designed to ensure that at least the Secretary of State for Defence knows what is taking place in the far-flung corners of his empire. From press conferences, it is far from clear about whether he is currently being so informed. As a consequence of these amendments, the Secretary of State will be able to judge whether actions are taking place either as a result of the use of UK facilities or as the result of the transmission of information through UK facilities that are not in accordance with UK law.

In her advice, which I have already referred to, Jemima Stratford QC points out that the USA has placed much reliance on the doctrine of what is called “anticipatory self-defence”. Except in the rarest of cases, it will be extraordinarily difficult to see how an individual being hit with a drone strike can be said to present an imminent threat to US interests, but never mind. More importantly, the UK Government have rejected that formulation of the doctrine of anticipatory self-defence. In his written report to Prime Minister Tony Blair when evaluating the lawfulness of the invasion of Iraq, the then Attorney-General wrote:

“I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law”.

To conclude, as warfare once again begins to be waged in secret, the citizens of a democracy are entitled to know that the actions being taken in their name are lawful. Confidence in our parliamentary system demands no less. I beg to move.

[Lord Astor of Hever]

My Lords—

--- Later in debate ---

[Lord Roper]

I am grateful to the noble Lord for that intervention. He is, of course, a very old friend. However, I feel that the Minister and the noble Lord, Lord Dannatt, in their interventions in the earlier debate, made it absolutely clear that there was no question of any American remotely piloted aircraft being controlled from United Kingdom territory. I think that was the assurance that the noble Lord, Lord Judd, was seeking.

On the other point, there is a perfectly good and important debate as to what is wise and what is unwise. I agree that there is a question of potential counterproductivity and that is why there is a dilemma in considering how these things should be used—whether there is going to be a net benefit, or a net disbenefit. That is a matter which has to be assessed on each occasion.

[Lord Hodgson of Astley Abbotts]

The noble Lord, Lord Judd, has raised a point and I think that my noble friend has answered half of it. He has answered the point about action coming from here. What we need to find out is whether information is being passed on which others take action. If we are doing that, we are assisting an illegal act. We need to be clear about that. It is not just doing things, it is sending information that other people act on.

[Lord Judd]

I should like to support that response to the noble Lord, Lord Roper. I hesitate to use the word to such a long-standing personal friend and in the context of my respect for him, but I think it is a bit naïve to argue that, simply because we have these undertakings on automated aircraft and automated weapons, that is the end of the story. An awful lot of other things could be happening on our territory and on our premises which could be assisting with, for example, the extrajudicial killing, if we see it that way.

--- Later in debate ---

In conclusion, Amendment 14 is clearly within the scope of the Bill, but I am afraid that I cannot agree to it for the reasons I have set out. Amendments 15 and 16 deal with issues that are outside the purposes of the Bill. I therefore ask noble Lords not to move them.

[Lord Hodgson of Astley Abbotts]

My Lords, it is important to have on the record that these amendments are not meant to undermine collaboration with our allies, wherever they may be. We understand that the security of this country depends on working with people and other nations and making sure that we in turn help them maintain their security. It is important that that should be on the record.

What I was concerned about was this: the noble Baroness, Lady Stern, referred to the creation of a culture, and the question is whether we have the right culture around how this issue should be approached. I do not want to stretch the analogy too far, but the problems that happened in the City of London were about culture. People said, “So long as it is not breaking the law, we can do more or less what we like”. What the noble Baroness is putting her finger acutely on is whether we have people who follow the spirit as well as the letter of the law, or whether we are, as the noble Lord, Lord Judd, said, in danger of being seen as hypocritical.

The Minister said, strangely, that systems for supervision and scrutiny exist, but he was not prepared to confirm that they are being used because he could not say that. That is exactly the culture question. The systems are there, but are we using them properly? In that sense, unlike his response to the first group of amendments, this was a rather less than satisfactory response. We have not addressed the question of anticipatory self-defence and whether we are providing means of collaboration with our allies, whoever they may be and who believe that anticipatory self-defence is okay, in things that would be unlawful under UK law. We have had a good first canter around the field. My noble friend Lady Miller has got her teeth into the ankle of an issue and is not letting go. In the mean time, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Strategic Defence and Security Review

Lord Hodgson of Astley Abbotts Excerpts

Friday 12th November 2010 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, during the previous Parliament, I had an opportunity to go to Camp Bastion in Helmand and on to Kandahar. The experience left me alternatively proud and humble. I felt humble because of the easy life that I live in your Lordships’ House compared to the daily challenges faced by our men and women in Camp Bastion and, in particular, the forward operating bases. I felt proud because they were such a professional group of men and women ready to do their best for their country.

Even flying in across that huge and rugged terrain showed the danger of willing the ends without willing the means. As we held discussions at Bastion, two things became very clear: that we had, and I think still have, a persistent shortage of helicopter lift capacity; and that has there been a slow—some out there would say an unconscionably slow—development of adequately armoured vehicles for transporting personnel. Particularly this weekend, we need to recognise that a heavy price is being paid for those failures. I have my views on how such failures have occurred, but this is not the time to introduce a partisan note. Like the noble Baroness, Lady Dean, I will leave history to be the judge.

As many other noble Lords have said, we are now a medium-size power and we have to keep this at the forefront of our mind if we are to avoid again confusing means and ends. We are a medium-size power with a population of 60 million and a power with a period of extreme financial stringency ahead that must necessarily inform and guide our actions. I welcome the document that we are debating today because it provides a reality check and some common sense.

I welcome the document in particular for two reasons, the first of which is its emphasis on cyberoperations. Last year, I had the privilege of serving under my noble friend Lord Jopling on a European Union Committee inquiry into cyberwarfare that resulted in the report Protecting Europe against large-scale cyber-attacks. The scale of cybercrime, cybersnooping and cyberintelligence was an eye-opener to me. The use of botnets, Trojan malwares and other extraordinarily named devices provides a cheap and easily disguised way of causing maximum damage. Therefore, I welcome the fact that we are putting increased emphasis on cybersecurity. However, by its very nature, that is not a national but an international problem. The European Network and Information Security Agency is inconveniently—and, in my view, unhappily—based in Heraklion in Crete, but, be that as it may, it is an international and a European response. I was disappointed that the review gives a higher priority to linking with the United States than to linking with ENISA.

Secondly, I welcome the renewed attention being paid to the Armed Forces covenant, to which the noble Lord, Lord Ramsbotham and the noble and gallant Lord, Lord Walker, have referred. I should declare an interest as chairman of the Armed Forces Charities Advisory Committee. Inter alia, the covenant provides for reasonable periods at home between unaccompanied overseas tours. I regret to say that in recent years, the line between those periods has become increasingly blurred. Putting that right is not just a matter of honour—although it is a matter of honour—but a matter of practicality. I am not a military man, but I believe that, if the practice continues unchecked, it will have an increasingly serious impact on the manning of our Armed Forces. That will not be seen at the junior recruit level because young men and women are footloose and fancy free—as they should be—but the middle ranks of officers and NCOs, who represent the backbone of our forces, have wives, husbands and children. There is a danger that they will vote with their feet.

In that connection, as the noble Lord, Lord Hutton, said, we need to get to the root of today’s article in the Times. It cannot be that a corporal who loses both legs in a bomb blast will miss out on £500,000 in pension and benefit-related payments. We must discover what the truth of that is—I have no idea whether it is true—and get to the bottom of it if we are to keep faith with our men and women in the Armed Forces.

For the rest of my remarks, I should like to turn to the second half of the strategy, which is described on page 9 as follows:

“to shape a stable world, by acting to reduce the likelihood of risks affecting the UK or our interests overseas, and applying our instruments of power and influence to shape the global environment”.

We have done less well on this part of the review than on the military side. I fear that we live in a world of increasing intolerance and, above all, of an unwillingness to compromise. We live in a world in which to compromise is to be seen to be weak and is portrayed as such, yet the readiness to compromise is the essential oil that keeps a pluralistic democracy functioning.

The challenges of Muslim fundamentalism are well documented, but we are starting to see the emergence of movements with similar certainties in Western countries, most recently with the rise of the Tea Party movement in the United States. It has been written that, for fundamentalists,

“their people are a chosen people who have a special covenant with the Creator, everything should be good in their lives and land as long as they hold to His law. Things are going wrong; therefore the covenant needs to be renewed and those that have strayed from the path must be brought back into the fold, or cast out”.

For the Tea Party,

“The constitution is the new 10 commandments for God’s chosen people. It is not negotiable. The problem with this fundamentalism—as with Islamic, Jewish, Hindu ... is that there is no dialogue to be had, no pragmatic give and take with those outside the movement of the true believers … The process of democratic politics risks breaking down”.

That will have an impact on foreign affairs, too. In an interesting article in the Financial Times, Mr Gideon Rachman wrote:

“The Tea Party … are liable to interpret setbacks and frustrations, at home and abroad, not as a consequence of the inevitable and growing constraints on American power—but as a result of some sort of ‘stab in the back’, whether by ‘liberal elites’ in Washington, or conniving foreigners overseas. That, in turn, risks leading to an unstable foreign policy that is aggressive, self-righteous and self-pitying in equal measures.”

So what does a medium-size power such as the UK do to encourage the millions of non-fundamentalists to continue to believe that a pluralistic, liberal system can help maintain a more stable world for us all to live in? We should not, I regret to say, send an aircraft carrier—with or without aircraft—as such an approach will tend to reinforce mindsets rather than change them. We need now to focus on what has become known as our “soft power” assets. For various reasons, the United Kingdom is particularly well placed in this field: the English language has become the world’s lingua franca; we have world class universities and what Chatham House has described as world-class knowledge assets, including the Ditchley Foundation, the Defence Academy, Wilton Park and so on; we have the British Council; and we have the BBC overseas service. In the short time remaining to me, I shall focus on the latter.

As I understand it, the funding of the overseas service will pass from the Foreign Office to the BBC. Some argue that this is a welcome development that gives further evidence of the service’s editorial independence from the Government—the noble Lord, Lord Hannay, did so in yesterday’s debate—but the decision raises real concerns. First, the BBC is operationally hard-wired to provide news for the United Kingdom. Indeed, its charter requires that and I am not sure whether the present charter agreement even permits the BBC to fund the overseas service. My noble friend may care to look at the detail of the agreement—on page 39, paragraph 75—where the issue is laid out. Secondly, and no less important, the BBC is structurally oriented towards its domestic audience. The trust, the ultimate protector, has representatives from England, Scotland, Northern Ireland and Wales, but where is the champion for the overseas service?

That is not to say that the overseas service is perfect—it is not—but the ability to project impartial news to people who cannot get it elsewhere, and often to do so in their own language, is a vital contribution to the soft power of this country. We need to ensure that, in an age of financial stringency, there are adequate protections against a slash-and-burn approach to what may become an orphan service.

As I said at the outset, I support the review—but there is more to do to weld all these soft power assets into a coherent approach to the benefit of this country and the world.