Legislating for UK Withdrawal from the EU

Debate between David Davis and Kevin Brennan

Thursday 30th March 2017 Commons Chamber

[Mr Davis]

We are not going to create a democratic deficit. This is a White Paper, and that is what we are here to discuss, with Parliament.

[Kevin Brennan (Cardiff West) (Lab)]

I understand from what the Secretary of State has just said that the European economic area will not feature in the Bill. Can he confirm that there will be a separate vote in Parliament on the EEA?

[Mr Davis]

It will depend on what the policy decision is, but I think that it is quite likely to come to Parliament.

Trade Union Bill

Debate between David Davis and Kevin Brennan

Ping Pong: House of Commons
Wednesday 27th April 2016 Commons Chamber

[Kevin Brennan]

Obviously I cannot comment on how long the Minister will remain in his post—we will see what happens in the forthcoming reshuffle. However, I did recognise the movement the Government have made, although I made it clear that their amendment to their lordships’ amendment is unnecessary and that the whole matter could have been dealt with in a much more straightforward manner. However, we are where we are, having received these amendments from the Lords, and those are all that we can discuss today.

Ultimately, it is inconceivable that any Minister, having received a report on how e-balloting could be introduced safely, would then deny trade union members the opportunity to participate in a ballot using modern electronic communications. The only possible reason for Ministers at that future point to reject an expert report outlining the appropriate way to introduce modern technology into ballots and to offer the opportunity for easier participation in a democratic vote would be a desire to suppress turnout.

[Mr David Davis]

The hon. Gentleman comes right to the point. He does not have to rely on the good will of this Minister, who I am sure will be in the Cabinet in six months. The reason I asked the Minister to outline at the Dispatch Box the Government’s intent on receipt of the report was that, if another Minister were ever tempted not to follow the explicit policy line we have now, the hon. Gentleman and I could hold that Minister to account in this Chamber.

[Kevin Brennan]

I do not know whether future Prime Minister Gove will appoint the Minister to the Cabinet—we shall have to wait and see—but the right hon. Gentleman is exactly right. That is why the Government’s amendment is unnecessary and dilutes the effect of accepting the rest of this Lords amendment. However, I am seeking to put on record the fact that, should any future Minister take another path, having had a clear recommendation in the report, one could only interpret their intentions as less than honourable.

Armed Drones

Debate between David Davis and Kevin Brennan

Tuesday 1st December 2015 Westminster Hall

[Mr David Davis (Haltemprice and Howden) (Con)]

I beg to move,

That this House has considered the rules of engagement and the use of armed drones.

It is a pleasure to serve under your chairmanship, Mr Stringer. In all my time in the House of Commons, this is the first time that I have proposed a motion in Westminster Hall, so I beg your indulgence for any errors of procedure that I make.

The issue before us is hugely topical, particularly given the debate on Syria in the House tomorrow. Armed drones, unmanned aerial vehicles or unmanned combat aerial vehicles have been described by some as just another weapon system—a modern version of the rifle or the missile—and by others as offering unparalleled operational potential, but with associated strategic risks.

In the recently published strategic defence and security review, the Government proposed 20 new Protector armed drones to

“enhance our…global strike capability”,

by which I assume the Government mean inside and outside war zones. That distinction will come up time and again in what I have to say and, I hope, in the Minister’s response.

Reconnaissance drones—I will deal with these for a second without going into the armed element—give troops enormous advantages. They are an unblinking eye in the sky for 24 hours a day, with a very wide angle of view and great precision. They are enormously valuable to special forces and in counter-insurgency operations, let alone in conventional warfare. They are reliable, give real-time intelligence, and are able to replay events quickly so that troops can know what has just happened.

Last week, the all-party parliamentary group on drones and the Royal United Services Institute had a conference on drones, at which we were addressed by probably the greatest warrior of modern times, General Stanley McChrystal, and his English counterpart, Graeme Lamb, both of whom devised and operated the strategy against al-Qaeda in Iraq and destroyed that organisation. In doing so, one of the primary tactics involved using a drone to backtrack any suicide bomb attack on the green zone, signals intelligence to follow up on the origin of it, and special forces to arrest and stop the instigators. That allowed us pretty much completely to eradicate al-Qaeda in Iraq, so it was an incredibly important element of our operation there.

McChrystal talked about the use of drones as a force multiplier. For example, if 20 people were sent in to make an attack, 80 or 100 force protection soldiers were needed. Those are no longer needed because of the reconnaissance sight capability, so drones are an incredibly important weapon system, even just as a reconnaissance system. They are also incredibly precise strike weapons. They are apparently largely riskless, with very little chance of loss of human lives on our side, and have pinpoint-accurate strike capability. The use of drones can therefore provide a never-ending threat inside and outside war zones. I will come back to the difference between the never-ending threats in those two categorisations in a moment.

Drones consist of relatively accessible technologies. As a result, we might take it that proliferation is inevitable. That is one of the strategic risks that I want the Government to consider. Beyond that, there are other genuine concerns. The first was made clear by General McChrystal last week: on one hand, drones lower the threshold for and make it easier to enter into armed conflict, and appear to remove the risk to our personnel and to render warfare almost like a video game; on the other hand, there is an illusion of precision. For those reasons, drones make the propensity to go to war far greater for countries that are worried about, say, their casualties. Most countries will concern themselves about casualties. Casualties are the political price paid for going to war and, as we will see with the Chilcot inquiry shortly, they create a great back pressure against war. As I said, there is an illusion of precision. One forgets that many of the reasons for imprecise targeting are not the drones or the weapon system, but the intelligence on which the targeting is based. Very often there is a precise weapon system, but it is not more precise than the intelligence can make it.

The other point made by General McChrystal that is worth considering is that the use of drones may make accidental conflict more likely. He cited the example of the Turkish air force shooting down a Russian aircraft a week or so ago, and said that had the incursions by the Russians into Turkish airspace been made by drones, they would have been shot down much earlier because the price of the action would have been smaller. That may lead to a lower threshold for an aerial conflict, so there are other ways that the use of drones can reduce the threshold. As such, one of the strategic risks of the use of armed drones is an increased risk of armed conflict.

The second point that came up, which is not really a strategic risk but is a matter of concern, was the effects on drone pilots. There was a great deal of concern about the fact that drone pilots, as it were, go home to their families each night with no time to decompress after effectively being in the war zone all day. They witness the violence, whereas most people who are involved in a war are distanced, at least to some extent, from the people who suffer from their weapon system. The sheer fidelity of the drone systems makes the witnessing very close and personal, in some senses. The sheer number of kills that some armed drone squadrons achieve increases the stress. One squadron was attributed with 1,626 kills, which is far more than any normal aircraft squadron would carry out. There is a long-distance version of post-traumatic stress disorder.

However, one other element worried me even more than that. It comes back to the legalities, to which I will return in a minute in putting a question to the Minister. If we undertake drone attacks outside a defined war zone, the location from which those attacks are operated may become part of a war zone, and we may legitimise a counter-attack on that area. Since many of those places are in rear areas, that has real issues for the operation of our RAF bases, such as RAF Waddington.

The big strategic risk that was raised by a number of people, particularly McChrystal, at the RUSI conference was the damaging impact on hearts and minds in battle. For those suffering drone attacks, there is an inability to strike back, a fear of constant danger, and a never-ending threat that is always there. There is strong evidence that this syndrome radicalises and militarises civilians, and unites militants. Drones can act as a recruiting sergeant. The most obvious example is the American drone operation in Pakistan, which, although it has taken out a lot of Taliban leaders, has also acted to recruit a number of others to their cause. Again, I suspect that will manifest itself in the battle against ISIL, because such organisations recruit worldwide. Last year, ISIL’s estimated recruitment was 30,000, having climbed from 15,000 during the course of the American attacks in Syria. That is an incredibly serious element of the strategic risk of using drones. From that point of view, drones are perhaps the biggest risk that we undertake.

[Kevin Brennan (Cardiff West) (Lab)]

Was there any discussion at the conference of how soon it will be before terrorist organisations are able to organise attacks using drone technology, or at least a modified version of it?

[Mr Davis]

No, not particularly. There was a reference to it, but it was a throwaway line, and I cannot tell you the originator of the reference because of Chatham House rules. As I said earlier, plainly the nature of the technology involved in drones is awfully straightforward: the aerodynamics are straightforward; the motive power is straightforward; and the guidance systems are straightforward. Of course, lots of commercial drones are now available. Making an attack drone would take more than that, but it is pretty straightforward to achieve almost every element of building a drone—perhaps not a terribly sophisticated Predator or Reaper drone, or whatever, but a drone that might be used for a single-shot attack, or that could get to a location that is otherwise well protected against terrorist attack. It is absolutely clear that, if that is not possible now, it will be possible in the extremely close future. Drones are an element of proliferation that I suspect is already out of the bag. There is not much that we can do about it except plan our defences against drone attacks. That is too big a story for this debate, but the hon. Gentleman makes a good point.

I now come to the nub of this debate. The legal framework we create for drones has implications for strategic risk, for the way drones are used, and for whether their use acts as a recruiting sergeant. All the elements that I have talked about can be affected by the legal framework, which needs clarity to maintain the UK’s international standing and to protect the pilots and the armed forces from prosecution. It is not fair to ask our soldiers to carry out tasks without absolute legal certainty. Most of us do not know the exact background of some of the recent drone strikes—I am sure the Minister knows, but I do not. After the Khan strike, a headline in The Sunday Times stated “Army chief demanded legal cover for killing”. The article claimed that the director of special forces asked for specific legal advice on the strike. I do not know whether that is true, but it highlights one of the issues for me, which is that when we are going into a controversial military technology, we must absolutely ensure that the officers who use it are properly protected and clearly understand the limits of its use and where they might cross the rules of war, international law and so on. That is one of the major drivers of my argument.

When Reyaad Khan and Ruhul Amin were targeted in Syria by a UK drone on 21 August 2015, the Government claimed:

“This airstrike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.”

The Government also said that there was “clear evidence” that these individuals were planning and directing armed attacks against the United Kingdom. There was a lot of debate about that at the time, and there were questions about how imminent the attack might be, and how it was possible for there to be an imminent attack when these individuals were in Syria and the attack was cited as being in the UK. Some of the events that were cited happened in advance of the air strike, so it is not obvious how they could have been prevented by it. There was a series of arguments, but the basic argument was imminent self-defence.

In a letter to the United Nations, the Government cited the collective self-defence of Iraq as the second argument for the strike. I am not a lawyer, but it seems self-evident that this is a little like someone turning up in court to face an assault charge and saying, “I wasn’t there, but if I was there, he started it.” One argument undermines the other. The presentation of two arguments to the United Nations weakens, rather than enhances, the claim. I do not know why that was done, but again it highlights why we need absolute clarity on such matters. This is not an area in which we can risk having doubt—in the interests of our officers, let alone in the interest of our national reputation—about whether we have done the right thing.

As it stands, an armed attack must already have been launched, or at least be imminent, in order for states to resort to force in individual or collective self-defence; that is one element. Action against past attacks, if not done during the course of a war, risks being categorised as reprisal, which is unlawful in peacetime. Action against future attacks, which might be considered pre-emptive or preventive, is also considered unlawful. There is quite a narrow gap for strikes, which must be necessary and proportionate.

The concern raised by the Khan attack, and indeed by the subsequent attack by the Americans, relates to what we might call “targeted killing”—some have used the phrase “extrajudicial killing.” The concern, which again was raised by General McChrystal, among others, was that that could be seen as an easier alternative to arrest or prosecution when dealing with terrorists. We had that argument in Northern Ireland 30 years ago, when we were accused of hard arrests, as it were. We do not want to revisit that argument, because it was pretty unedifying at the time. If we give in to temptation and such strikes happen, it may be morally right in the case of the individuals concerned, but it would be legally dubious. At the very least, it would amount to a significant change in the Government’s stance on what is legal and what is not, and it therefore requires careful consideration.

Those concerns are amplified by the recent change in the ministerial code relating to international law. I happen not to think that the change has any legal standing but, from a political point of view, it raises concerns that, again, could be used against us by our opponents. I have argued time and again that one of our strongest counter-terrorism weapons is the fact that we abide by a high moral standard. If we do not abide by a high moral standard, we lose one battle to our opponents straightaway.

I am driving towards the relationship between the rules of engagement and the legalities I have just mentioned. This is my direct question to the Minister; I understand that she may not be able to answer it today, but hopefully she will be able to indicate where she is going towards on this question. If the rules of engagement are properly drawn up, they must be within the law, within declared Government policy and within any parliamentary limits that have been set. The Syria debate will address the limits set by Parliament, but action must fit within all three areas. I would normally assume that to be the case but, after our conference last week, I got a memo from somebody who does not want to be identified, so forgive me if I do not identify him. The memo encapsulates the problem about which I am worrying:

“Following the conference last week, I came away with the distinct impression that the MoD is using a different lexicon to the APPG and academe resulting in us talking at cross purposes. Where the APPG and Human Rights Select Committee…are talking about war zones and so forth the MoD have very carefully couched their wording in terms of RoE and operational areas.

Typically RoE have an opening preamble covering the legitimacy of the operation involved…The wording for this will be sanctioned by the MoD legal advisers and endorsed by the law officers’ staff. The RoE then set out the area of operations and it was clear to me from the comments at the conference that this area included parts of Syria—hence everything being done (including 21 Aug) was within the RoE. Typically the MoD and lower formations take the law officers’ confirmation of legitimacy as gospel. They also then seek to make the rules as flexible as possible to allow commanders the greatest possible latitude.”

Essentially, he is saying that the MOD is using a set of language to explain the rules of engagement and the area of operation that is not the same as the law officers’ definition of what is and is not a war zone and the like. That seems important.

The relationship between the rules of engagement, international and national law and policy is the point where the rubber meets the road. One can expect soldiers and airmen to operate on the basis of the rules of engagement only, and nothing else. We must be very clear in this area.

The Joint Committee on Human Rights has begun an inquiry on the legality of the drones policy. There are three pages of questions—I will not read them out—that crystallise the inquiry. They are all good questions, but I finish on the point that drones are not just another weapons system; they are an incredibly effective weapons system subject to legal and technical proliferation, and to change in the behaviour patterns of both politicians and senior commanders. There is a great risk of acting in a way that is tactically incredibly successful but strategically dangerous. It seems to me that we need a clear and unambiguous legal policy, in the interests of our soldiers, our citizens and our allies.

--- Later in debate ---

[Kevin Brennan]

I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis).

[Mr David Davis]

The hon. Gentleman makes an important point, which impinges on the speech made by my right hon. Friend the Member for Cities of London and Westminster (Mark Field). One of the most worrying things for me about American policy is the idea that the President approves a kill list every Thursday morning, or whenever it is. That is the kind of area in which I do not think we want to go in the direction of the Americans. Politicians should not have the right to strike someone from the face of the earth, no matter what the logic. Does the hon. Gentleman agree?

[Kevin Brennan]

I do agree.