Defence Reform Bill

Lord Roper Excerpts

Wednesday 5th February 2014 Grand Committee

[Lord Dubs (Lab)]

My Lords, I want briefly to add my support for these amendments and to make one point. When the visiting forces legislation and other legislation governing the use by the United States of airbases in Britain was enacted, the technology was at a very simple stage. We did not have sophisticated techniques such as drones; we did not have any of these things. The legislation was designed for a different age when things were very simple. Because they have changed so much there is a need to look again at the way in which these bases operate. That is my simple proposition.

I understand that, when questioned on this point, the Minister said:

“There is no requirement for an additional agreement regarding the use of RAF Croughton by the United States visiting forces … The Department has no plans to review this arrangement nor review the activities undertaken by the US at the base”.

The US has been a great ally of ours. We were delighted when its forces came here and we welcomed them. Their airbases in Britain helped defend us in the war and we must not forget that, but things have moved on. The problem is that activities that were fully understandable to us, and we were happy about, when these bases were first established may now be considered in a different light. We are at least entitled to have a better understanding of what goes on there and to be assured that the uses to which the bases are put are compatible with our system, our laws and our approach to using some of these very dangerous weapons.

We need to look again at this issue. I am not saying that we should close down American bases. I share the view of the noble Baroness, Lady Stern, on drones: they have their good points and they have their bad points. However, we need to be careful before we allow even the friendliest of our allies to use bases for purposes about which we do not know enough and certainly have unease.

[Lord Roper (LD)]

My Lords, I shall speak briefly to this group of amendments but my remarks apply also to a later group. Comments made on this issue will, inevitably, cross from one group to the other.

Many of us have benefited from the advice which the All-Party Parliamentary Group on Drones received from Jemima Stratford QC and Mr Tim Johnston of Brick Court Chambers, which is obviously of great value. However, before we look at this issue again on Report, noble Lords may find it valuable to read the very important interim report that Ben Emmerson QC delivered to the General Assembly on 18 September 2013, which not only considers the way in which remotely controlled aircraft have been used by both this country and the United States in various parts of the world but makes a detailed inquiry into the complications and difficulties of international humanitarian law. He has not come to a conclusion on these matters but his report is of considerable value in explaining the complexities and ambiguities. Members of this House would benefit from reading that report as well as Jemima Stratford’s opinion.

[Lord Judd (Lab)]

My Lords, I speak in support of these amendments. The point that has already been made cannot be stressed too strongly—namely, that rules, regulations and definitions that have been adequate to date need to be reviewed in view of the immense and unforeseen scale of development in modern warfare. It would be irresponsible to assume that the current rules and definitions, which were drawn up in the past, respond adequately to the new realities.

I have absolutely no doubt that the service in which I was privileged to serve, the RAF, is fully committed at the most senior levels to implementing not just what the law says but the spirit of the law. I am sure that that is the case. If it is the case, I cannot see how reviewing the sufficiency and adequacy of existing legislation can do anything but strengthen its position. It is good that these points have been brought forward.

It is very difficult to share my next point with the Committee, as it is not clear whether the issue should be raised now or on later amendments. Reference has been made to the overlap in this regard. I am deeply concerned about whether we as legislators are taking the psychological implications of the new developments seriously enough. I am sure some of those involved in the operations are taking them very seriously. If I put it crudely, it is not out of any hostility to the people concerned; it is just to try to bring home the starkness of the reality with which we are dealing.

I was talking the other day with a good friend whose son has just got a very good engineering degree. What does he want to do with his engineering degree? His ambition is to work in computer games and eventually perhaps have his own firm, I think. There has been terrific change in the nature of this kind of activity and what it can involve. I hope I will not be accused of being irresponsibly sensational, because it does not seem to me that it is irresponsibly sensational at all. It is taking into account the realities of life. When did we begin to drift into a situation where the mental and psychological processes about playing very advanced computer games and the processes of sitting in the Nevada desert, or wherever it is, operating a machine became blurred? How do we continue to take, as we have always tried to take, the responsibility of recognising that war is a last resort and a very grave step to take? How do we now undertake warfare in the context of all sorts of humanitarian obligations and the rest? The Geneva conventions are just one example. I think that for all these reasons there has been a certain degree of complacency among legislators about what is happening and its significance, and I am sure that it is time that this was reviewed. I cannot stress strongly enough my appreciation of those who have brought this amendment forward.

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[Lord Roper]

Perhaps I might just ask the noble and gallant Lord one question. In the report by Ben Emmerson that I quoted there is a reference to the way the United Kingdom considers targeting intelligence. It says:

“The United Kingdom has informed the Special Rapporteur that during its operations in Afghanistan targeting intelligence is ‘thoroughly scrubbed’ to ensure accuracy before authorization to proceed is given”.

Could the noble and gallant Lord explain to those of us who are not so well informed how one “scrubs” intelligence?

[Lord Stirrup]

First, one has to decide upon the reliability of the intelligence, because intelligence is not knowledge—there is no certainty about it. What degree of assuredness can we attach to the intelligence? What sort of cross-referencing is there? Then, everything else about the target—its structure, the things around it, the possibilities of collateral damage and all the issues properly raised under the law of armed conflict; that is, the military utility of attacking the target versus the possible risks of doing so—is gone into at great length. Certainly as far as the United Kingdom—and, in my experience, the United States—is concerned, it is done with a lawyer looking over one’s shoulder the whole time. When I was responsible for these sorts of targeting decisions in the five months after 9/11 when I was at United States Central Command, my lawyer and I were essentially joined at the hip. It had to be so and I welcomed it.

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[Lord Roper]

My Lords, I apologise for omitting to thank my noble friend Lord Hodgson for these interesting amendments and my noble friend Lady Miller, and the noble Baroness, Lady Stern, for their contributions. I turn to a point made by my noble friend Lord Hodgson in moving the amendment when he quoted from the useful and interesting opinion received from Jemima Stratford. As I mentioned, there is an ambiguity in the approach to international law in the United States and in this country which raises some of the problems that we are having to consider today, in particular the problems that would arise—I realise that the Minister is unable to discuss the transfer of intelligence between allies—if intelligence were able to be used for targeting purposes.

I am extremely grateful for having had the chance to read the interesting interim report of Ben Emmerson QC. The problem is that the United States considers itself to be involved in a non-international armed conflict with al-Qaeda and its associated forces that are transnational in character. That is not merely its view; it is the position endorsed by the United States Supreme Court in the judgment of Hamdan v Rumsfeld. There is a problem in it having that position which, as we heard from the noble and gallant Lord, Lord Stirrup, is not the position in this country. There is a difference in the interpretation of the law. Indeed, the final report of Mr Emmerson will, I hope, help us to clarify it, but that is the problem that faces us at this stage.

We also have to realise that the United States can pray in its own defence some of the UN Security Council resolutions that were passed in 2001 following 9/11. If we look at UN Security Council Resolution 1368 of 2001, or UN Security Council Resolution 1373, we see that they almost gave the United States authority to deal with al-Qaeda wherever it was met. As I say, there is a difference in the interpretation of international law and an ambiguity that leads to some of the problems that we are discussing today. Mr Emmerson provides an interesting discussion of these matters in his report to the UN, and I hope that if we return to them on Report, it will be possible for other noble Lords to have read it.

[Lord Judd]

The noble Lord, Lord Roper, has raised a crucial issue. I am sure he would agree that, having stated that there is a difference in interpretation, we then have to act in the context of what is our interpretation. The danger is that we condone from premises and territory which is ours activity that may be acceptable within the United States interpretation but which is not acceptable within our interpretation. Of course, this can realm into very controversial issues, such as where does extrajudicial killing begin and end? There is the issue of rendition, as we have seen in the past, and so on. That is why it is so crucial to remember that the Minister in his very helpful response to our previous debate gave a specific assurance that he would be able to say things at this stage of our proceedings that would completely reassure us. The point is that our territory and our premises can be used only in terms of our understanding of the legal position and our interpretation of what it is all about.

I should like to make one other point. It is not just a matter of legality. I care desperately about that because I always come back to the point that, in the end, what the hell are we defending if we are not defending the principles of the rule of law and so on? We make an absolute nonsense of our commitments if we rationalise our way out of that.

I am always very worried—and this applies in British domestic legislation too—about where the dividing line between what is effective action against terrorism and extremism and all these cruel and unacceptable happenings becomes counterproductive because it begins to lend ground to those who are trying to recruit for the cause of extremism. One of the arguments that they love to use is, “look at the hypocrisy of these people”. It is, therefore, crucial to be able to demonstrate all the time that we are operating, not only in detail but in spirit, according to the principles we say we are upholding.

[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.

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[Lord Roper]

The noble Lord is obviously right about that. I was really treating the somewhat narrower point on the earlier amendment which we had been considering rather than the wider range of activities which could take place and which was very much discussed when we were looking at the question of extraordinary rendition.

I only replied en passant to the second point which my noble friend Lord Hodgson made. I mentioned that, although we have had a very clear assurance about nothing being done from the United Kingdom, unfortunately, the Minister was unable to cover the second issue which he raised.

[Baroness Miller of Chilthorne Domer]

I apologise to the Minister but, as the noble Lord, Lord Rosser, does not appear to be going to give an opinion, I would like to ask him a question. His Government were farsighted enough to bring in the Regulation of Investigatory Powers Act—and obviously they were concerned that the legislative framework kept up with technology. Does he support, in principle, the idea behind our Amendment 15 that its reach should be extended to cover visiting forces? In his opinion, is that something that we should aim to do?