Defence Reform Bill

Baroness Miller of Chilthorne Domer Excerpts

Wednesday 5th February 2014 Grand Committee

This amendment is a small beginning. If we want to agree on the terminology—which will certainly not be easy—the view of the APPG is that “unmanned aerial system” is a preferable term to “remotely piloted aircraft system” because that definition fails to take into account the fact that these devices might not be remotely piloted, and that they might not be piloted at all. This amendment could mark the start of a process of building up the corpus of law and regulation, governance and supervision that we are going to need in future. I look forward to the Minister’s response.

[Baroness Miller of Chilthorne Domer (LD)]

My Lords, I shall speak briefly to these amendments, to which I have added my name, because I want to spend more time on Amendments 14 to 16. What the two groups of amendments have in common is the need for accountability so that military activity or surveillance conducted from UK soil follows a legislative framework and a line of accountability through our Secretaries of State and parliamentary scrutiny committees. Such accountability is entirely lacking at the moment. I am glad that the noble Baroness, Lady Stern, set out so clearly the issues involved in this group of amendments, which I hope will allow me to spend a little more time on surveillance issues and the RIPA legislation lacuna that I want to talk about later.

[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.

--- Later in debate ---

[Lord Astor of Hever]

My Lords—

[Baroness Miller of Chilthorne Domer]

I apologise to the Minister, but I am afraid that there is a lot more to say on these amendments before he comes to reply.

I want to address two issues in these amendments in particular. First, the technology has advanced much faster than the legislation designed to regulate its application. In this case, I am not talking about drones but about interception capabilities. Secondly, a lot of the technology appears to be applied by American forces who operate from UK soil but for whom the force of UK law does not seem to apply. For both those reasons, I suggest that the legislative framework is in urgent need of amendment.

--- Later in debate ---

[Lord Robertson of Port Ellen (Lab)]

The said Mr Norman Baker is now a Minister at the Home Office. Has the noble Baroness any indication that he has perhaps pursued these matters and some of the other eccentric matters that he was interested in before he became one of Her Majesty’s Ministers?

[Baroness Miller of Chilthorne Domer]

I do not know why the noble Lord finds it an eccentric matter, but I have not discussed this with Mr Baker before speaking today or, indeed, at any time. I am simply quoting the Hansard entry from those years as an example of one of the parliamentarians. I could give many others, but I do not want to take the time of the Committee. They are certainly not eccentric.

[Lord Robertson of Port Ellen]

I should clarify for the noble Baroness that I was referring to Mr Baker’s other eccentric issues. This one might not be classified as that at the moment.

[Baroness Miller of Chilthorne Domer]

I do not think we are discussing the other issues at this moment, so I shall return to the matter of the debate. The fact is that Parliament has time and again raised this issue. Indeed the Defence Select Committee in another place also raised it. In October 2004, a number of changes of use at Menwith Hill were put through as Written Statements prompting the Defence Select Committee to tell the then Secretary of State, Geoff Hoon, that:

“Despite the Secretary of State’s unequivocal statement that he wanted the decision to be informed by public and parliamentary discussion, he has acted in a way that has effectively curtailed such discussions”.

It went on to recommend full parliamentary debate of the proposals. There were none. In January 2008, my noble friend Lord Wallace of Saltaire spoke about how much Menwith Hill remains subject to British control and said that he was,

“extremely unhappy about the extent to which it remains effectively under British sovereignty”.—[Official Report, 10/1/09; col. 987.]

There is a long history of Parliament being left in ignorance on this issue. I do not know the reason for that. Was it because Secretaries of State did not know what was going on there or chose not to let Parliament know? However, the fact remains that the legislative framework applies to UK operators and all communications between the UK and abroad. We now have the Regulation of Investigatory Powers Act, which was brought in to cover some of these advances in technology. It will not come as a surprise to Members of the Committee that, under the framework, authority and warrants must be given if anything is to be done that would interfere effectively with the private lives of UK citizens. We need to know that what happens on UK soil, whether it is done on American bases or by people in the UK, is covered in the same way. That is the point of these amendments. In Amendment 15, we would give responsibility to an individual to ensure a reporting mechanism. My noble friend Lord Hodgson already referred to what an unenviable position that might be.

We have a heavy responsibility here to make sure that the very unsatisfactory state that has continued for decades comes to an end. In last week’s State of the Union address, President Obama promised to work with the US Congress to reform surveillance programmes. All we suggest in these amendments is that we in the UK Parliament play our part in making surveillance accountable. I fully accept the need for a security programme but of course I am equally concerned about where the lines are drawn and whether GCHQ overstepped its remit. At least I am assured that GCHQ has a line of accountability to the Government and our Ministers, and appears before committees of Parliament. In the case of the visiting forces, that is something we can remedy by amending the Bill as we suggest. I strongly feel that that needs to happen.

To conclude, when in 1994 Bob Cryer brought up the worry about these developments at Menwith Hill, the then Minister, Mr Hanley, said that,

“what he peddles is ill-informed, second-hand fantasy based on prejudice against our allies which in itself is not in the national interest. His colourful language may well make good sound bites, but it is pathetic in its paranoia”.—[Official Report, Commons, 25/3/94; col. 616.]

Since then, Mr Cryer’s worries have proved to be absolutely sound. It is our duty today to put in place very belatedly these amendments that would ensure full accountability.

[Baroness Stern]

My Lords, it is a privilege to follow the noble Baroness, Lady Miller, who has been so determined in pursuing this over a long period. I shall try to be brief. I will begin by bringing to the attention of the Committee a very short passage from the Ministry of Defence Joint Doctrine Note. It quotes General Robert E Lee:

“It is well that war is so terrible—otherwise we would grow too fond of it”.

That seems a very well chosen quotation in light of the development of war that is remote, unpiloted and rather like a video game.

These amendments take us into the area of ensuring lawfulness through requiring reporting on the activities of contractors and visiting forces. We aim by raising this matter to ensure that there is a debate on the existing scrutiny arrangements and the need to update them in the light of the widespread use of unmanned aircraft systems and future developments. I am grateful to the Minister for cleaning up my language; I will now say at all times “unmanned aircraft systems”, and I can see he is happy with me because he is smiling. It is not to suggest for one moment that what our Armed Forces are doing is unlawful. I am sure that it is not, and I am sure that the noble and gallant Lord, Lord Stirrup, was right about having his lawyer with him all the time. I do not doubt any of that for a moment.

The doctrine note that I have just mentioned deals with matters of lawfulness, ethics and humanitarian law in chapter 5. The note begins by saying:

“Signatories to the Geneva treaties are required to review all new weapons, methods and means of warfare to determine their compliance with applicable law”.

I am sure that the Ministry of Defence has done this in respect of unmanned aircraft systems, and I would be grateful to have from the Minister an indication of how and when that was done and where Members of Parliament have access to reading about such a review.

The note also says:

“There are elements of the LOAC”—

the law on armed conflict—

“that have specific consequences for unmanned aircraft, as compliance will become increasingly challenging as systems become more automated”.

I was very interested and glad to hear the Minister say that we are not going to become more automated and use unmanned systems without human agency. I am sure that many noble Lords here today will be glad to see that on the record.

I take this opportunity to congratulate the Minister and his department on the doctrine note, which is admirable in its clarity, its adherence to international law and the thoughtful way in which it raises the implications of these technologies for war in future and the impact on our humanity and value systems. I assume that the document has been shared with our American partners.

In June 2013, I asked the Government a Written Question on,

“what assurances they have received from the United States that it will not conduct activities from United States bases in the United Kingdom that violate international law”.

In reply, the Minister said:

“The use of bases in the UK by the United States visiting force remains subject to long-established agreements and procedures which ensure that the UK Government are fully satisfied as to the propriety of any US activity undertaken”.—[Official Report, 12/6/13; col. WA245.]

Will the Minister indicate what the long-established agreements are—I imagine that they are in the public domain and we know what they are—and the procedures? Can he tell the Committee whether he is satisfied that these “long-established agreements and procedures” are up to date and capable of dealing with the developments that we are discussing today?

The noble Baroness, Lady Miller, set out very cogently the concerns about why we need such arrangements—the forms of monitoring and oversight such as those proposed in the amendments. Bodies to ensure that the law is being followed are a normal part of our public administration. The IPCC scrutinises the police and Her Majesty’s Chief Inspector of Prisons inspects the prisons, just as the Care Quality Commission inspects hospitals, and so on. The area of defence weaponry and its uses is also subject to law—domestic, international and humanitarian. Machinery to ensure that the law is adhered to can bring great benefits in informing the public, counteracting ill informed speculation and strengthening the hand of all those in the system who want to operate within the law but may find themselves in a culture where there is no pressure to do so because there is no scrutiny and no chance of a comeback. I hope that this debate marks the beginning of a wider discussion of these important questions.

--- Later in debate ---

[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?

[Lord Rosser]

It was not my intention to intervene in this debate since it seemed to be going on to rather wider issues than strictly covered in the amendment. For that reason, I am not going to go through the specific wording of the amendment and respond to the particular points in it as to where we stand because clearly the issues being raised in this debate go way beyond the amendment and, in my opinion, way beyond the provisions of this Bill.