Drones: International Law

Lord Janvrin Excerpts

Thursday 16th January 2020 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I thank the noble Lord, Lord Hodgson, for introducing this timely short debate. I will speak briefly about the importance of Parliament being able to scrutinise government decisions on the use of drones. I do so as a member of the Intelligence and Security Committee in the last Parliament, and its predecessor, which issued the 2016 report entitled UK Lethal Drone Strikes in Syria.

The international political ramifications of the United States’ decision to kill Qasem Soleimani will continue to be debated for months, if not years. But, as the noble Lord, Lord Hodgson, made quite clear, his Question is about issues of legality and policy raised by the assassination. The 2016 ISC report into the targeted killing of Reyaad Khan, a British member of ISIL in Syria, is instructive in examining some of these issues.

That report drew attention to the Government’s position that, when it comes to international law, the policy on the use of remotely piloted aircraft is the same as that for manned aircraft; namely, that pilots operate under the same legal constraints and rules of engagement. In accordance with Article 51 of the UN charter, a Government have the right to use force in self-defence where an armed attack is under way or judged to be imminent and where the response is both necessary and proportionate.

Thus far we are on familiar ground, but with the recent use of drones we soon get into more challenging territory. I pay tribute to the work of the APPG on Drones in looking at some of these more difficult issues—around the interpretation of the right to self-defence, what constitutes an imminent attack, and the strain imposed on these legal concepts by technological change relating to the use of robotics, data analytics and information technology.

My point is altogether simpler; it concerns the importance of being able to assess the intelligence. The 2016 ISC report made it clear that, in order to examine the legality of a lethal drone attack, it is obviously necessary to assess the secret intelligence underlying the judgments on the severity of the threat, imminence, necessity and proportionality. In the case of the UK’s decision to kill Reyaad Khan in August 2015, the ISC was able to take evidence in secret and to publish an important, if limited, report commenting on the intelligence supporting the decision to go for a lethal drone attack.

The significant point here is that Parliament had the ability to scrutinise the legality of a lethal drone attack because the parliamentary Intelligence and Security Committee, under the Justice and Security Act 2013, can examine the secret intelligence. For me, this is a very significant implication of the US drone attack. It is a reminder to Parliament of the importance of the Intelligence and Security Committee in providing that scrutiny and oversight of the UK’s intelligence agencies. This scrutiny is part of the licence given to the agencies to go about their secret business in an open and democratic society. It is about ensuring public trust—so vital to the effectiveness of these services, which make such a key contribution to our security and well-being.

The Intelligence and Security Committee is not a conventional parliamentary Select Committee. Under the 2013 Act, members are nominated by the Prime Minister in consultation with the leader of the Opposition, then Parliament makes the appointments, with each House voting on the nominations of its own Members. After the 2017 election there was an unfortunate delay of some five months before the new committee was appointed. I realise that there are many competing priorities after the recent election, but it is surely in the interests of the public, Parliament and the intelligence community to have the new committee up and running sooner rather than later. There are a number of ISC reports waiting to be published, and major issues—such as Huawei and the 5G network—on which the ISC will have a unique oversight responsibility.

Does the Minister have any information on the nomination process for this committee in this new Parliament? I realise that this may be outside her direct ministerial responsibilities, but I hope that she will at least be able to pass on that there is parliamentary interest in the appointment of a new committee without undue delay.