Armed Drones

Debate between David Davis and Mark Field

Tuesday 1st December 2015 Westminster Hall

[Mark Field (Cities of London and Westminster) (Con)]

I thank my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing the debate. As ever, he made a thoughtful and insightful contribution. He is also a man of boundless optimism—after all, he suggested that we would hear from the Chilcot inquiry “shortly”.

Unmanned aerial vehicles, or drones, have undoubtedly proved devastatingly effective. Militarily, as my right hon. Friend pointed out, their use has assisted in expelling al-Qaeda from large tracts of Pakistan—albeit not without some cost, and I agree precisely with what he and General McChrystal had to say—and from Yemen. Politically, drones have allowed the US in particular to pursue strategic objectives without needing to put boots on the ground in an era when, as we all know, there is very little appetite among western electorates for their countries to engage in further overseas military adventures.

Without doubt, the development of drone technology will continue apace in the years ahead. Drones will assuredly be an essential part of the furniture of international warfare and, as a consequence, their use will require a thorough overhaul of international law and regulation. That overhaul is still to come.

In the euphoria that surrounds the decisive deployment of drones to eliminate terrorist leaders from afar, it is also worth reflecting—as the hon. Member for Cardiff West (Kevin Brennan) did earlier—that before the world is too much older our enemies will also enjoy access to this technology, with potentially calamitous effect. Terrorists and even criminal extortion gangs will soon be able to operate hardware of this sort, the cost and capability of which is rapidly coming within their range.

The use of drones by the UK military was first avowed as recently as September, when the Prime Minister announced the extrajudicial killings of two UK citizens, Reyaad Khan and Junaid Hussain, who had joined ISIL in Syria and featured prominently in a propaganda video that promoted and encouraged terrorist attacks on UK soil. Of course, the UK Government wished to place those deaths on the record lest details seeped out via a freedom of information inquiry, as happened in July regarding joint US-UK air strikes over Syrian airspace. Moreover, the US policy of routine avowal of fatal drone attacks created the risk that eagle-eyed observers might notice that the two operations resulting in the deaths of Khan and Hussain had not been similarly gazetted. It is better to take the initiative rather than allow lurid conclusions to be drawn. In November, Mohammed Emwazi—alias “Jihadi John”—was similarly dispatched in co-operation with the US military.

For as long as such ISIL-supporting British terrorists were at large on Syrian soil, it would evidently have been impossible to bring them to trial. To be fair, there is a distinction between the situation today and that in Ulster some 40 years ago. Of course there were ungoverned spaces in parts of Londonderry and Belfast, but there are massive tracts within Syria that make it impossible to bring people to trial. None the less, their terrorist activity was designed to cause mayhem on UK soil. We are de facto at war with the so-called Islamic State, and as a consequence Khan and Hussain might properly be regarded as combatants. However, the strong inclination in the post-Iraq war era to provide watertight legal cover for all military operations led, as my right hon. Friend the Member for Haltemprice and Howden said, to the drone raid being classed as “self-defence” under article 51 of the UN charter.

That has opened up a series of contentious issues. For example, were the primary subjects of the drone attack “directing an attack”, and was such an attack “imminent”? As a consequence, our intelligence agencies will need to show after each drone strike that they have carefully considered the operation of article 51, unless we have the change in law that I will come on to. We need to keep the terms of such drone operations under regular, if not constant, review.

[Mr David Davis]

My right hon. Friend makes an incredibly important point. One of the difficulties with such a legal basis is the requirement of imminence, which gives us an evidential problem. Presumably there was some sort of terrorist cell in this country that was about to carry out a terrorist action, and the Government have failed or refused to answer questions about whether there have been any arrests in the follow-up to that strike. That gives us a problem. The Government may have good reason for not giving us the information, but when drone strikes are carried out they will have to be ready to provide an evidential chain of some sort to show that what they did was correct.

[Mark Field]

I very much agree with my right hon. Friend’s comments. It seems to me that we need to keep the terms of drone use under regular, if not constant, review, and that before seeking ministerial authorisation the intelligence agencies would have needed to conclude that the individuals posed an imminent and clear threat to national security. It is also essential that our security services satisfy themselves that a drone strike, rather than any attempt at apprehension, is both necessary and proportionate. The issue of collateral damage—the impact of a strike upon innocent civilians in the vicinity—has been incredibly controversial, especially in Pakistan and Yemen, where it has often been recognised that US strikes have necessitated discreet co-operation with host Governments.

In truth, the increasingly sophisticated monitoring of mobile phones, other telephony and emails has enhanced the ability to target suspects with virtually pinpoint accuracy—it was notable that the only other fatalities in the two UK strikes this summer were associates. That is a good thing; we should try as far as possible to minimise collateral damage.

Nevertheless, I agree with other contributors to the debate that there is now an urgent, and possibly unanswerable, case for updated legislation to govern the use of—not to mention the continued reliance upon—new drone technology. That would allow the Prime Minister and the Government of the day to act with the timing and precision required to wage effective operations, without first having to consider how to navigate the complex labyrinth of precedent, law and parliamentary approval that currently blunts us. The US War Powers Act goes some way to providing a template in that regard, bestowing on the Executive branch the ability to give the green light to action without congressional approval, while maintaining a series of vital checks, safeguards and balances.

It is worth recalling that US legal justification in relation to the use of drones on overseas targets has historically been markedly less strenuous. That has arguably caused difficulties in the ungoverned parts of the world where “Five Eyes” co-operation is often strongest—Iraq, Pakistan, Afghanistan and, more recently, parts of Syria. The UK security services’ knowledge that intelligence passed to their US counterparts is used to launch drone strikes without, for example, any clear imminent threat to national security, potentially places the UK military, and our own workers, in a legal quagmire.

Although a common protocol among western allies would be ideal, that would necessitate an open political debate about the desirability of adopting the hit list approach that the US military have for selecting drone targets. For the Obama Administration, that approach has essentially involved a rolling update of named individuals, with the list being refreshed whenever there is a successful drone attack involving the assassination of terrorist targets. Needless to say, such an approach is far removed from the necessity for the prior legal approval of each and every step under British law as it currently stands.

Thank you, Mr Stringer, for allowing me to speak for rather longer than my requisite minutes, but I did take some interventions. I very much look forward to the Minister’s response to the debate, and to her recognising that we need new legislation and some genuine thought about the matter, not just in the context of what is happening in Syria but, I suspect, for many years to come.

Wilson Doctrine

Debate between David Davis and Mark Field

Monday 19th October 2015 Commons Chamber

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

Before I start on the substantive argument, which is fairly simple, I will say one thing to the House. Those who are interested in this matter should look not just at the judgment that was handed down by the Investigatory Powers Tribunal, but at the transcript of the hearing.

I attended part of the public session. It was an illuminating process and did not necessarily give one much confidence. As the House will know, I have been involved in this subject for many years and am loth to criticise courts, but I was not impressed by the IPT’s understanding of the technology that is available to the agencies to enable them to sift and limit the damage that is done by their intrusion of privacy. To me, that seemed rather important.

Secondly, it is apparent that the ruling means something very specific. It means that the inquiry that was brought by Baroness Jones, George Galloway and the hon. Member for Brighton, Pavilion (Caroline Lucas) is very unlikely to receive an answer because if something is not illegal, they will not be told about it. That is the rule. The hon. Lady will not be told whether something has happened. She will be told only if something illegal has been done. One of the outcomes of this situation is that it will prevent her or any of the complainants getting an answer.

James Eadie, the very skilful lawyer who argued on behalf of the Government, made the point that the Wilson doctrine has no legal basis whatever, is not practical—that is why the tribunal’s lack of understanding was very important—and, therefore, is not binding on the agencies. That is a really serious finding. He spent the best part of two days in incredibly convoluted argument. The only inference that I can draw from the incredible effort he put into getting this outcome is that they had something to hide and that what was happening in secret was a statement that the hon. Member for Brighton, Pavilion or one of the other two complainants had been intercepted.

In the course of the exchanges with the judges, James Eadie was very illuminating on the attitude to this matter. He said, in effect, that if the Prime Minister had come to the House and explained the truth of the matter, post-RIPA, he would have been committing an

“act of political hara-kiri, or something quite close to it.”

That was the attitude of the tribunal to the Wilson doctrine.

[Mark Field (Cities of London and Westminster) (Con)]

I accept what my right hon. Friend has said, but is not one concern that the Wilson doctrine is 50 years old? It was written in a very different world, before the internet. He has drawn various conclusions from what was said, such as that the Government had something to hide. It might simply have been that the Government recognised that the legislative process, which we are updating, was not fit for the purpose of a modern-day Wilson doctrine.

[Mr Davis]

I take my right hon. Friend’s point, but that is why I urged Members to read the transcript. What I said is very apparent from the transcript. He is, of course, right that there has been a huge transformation. Metadata, which I will come back to later, simply did not exist in their current form in Wilson’s day. Many of the things that are now available, including email, did not exist in his day. A whole series of things that we all assumed had been swept up in the Wilson doctrine have not been swept up in the Wilson doctrine. That is why the Home Secretary’s case that it is the same as what was enunciated by Harold Wilson all those years ago is simply not tenable. I will come back to that point, too.

Members will notice that the Press Gallery is nearly empty. Over the past week or so, the newspapers have been very derogatory about this case and the argument that we are putting. They say, “Why should MPs be treated any differently from anybody else?” Those, by the way, are the very same newspapers that were in an uproar of anger about the fact that somebody had checked out the metadata of one of their journalist’s telephones. Perhaps they were right in that, but it is an odd dichotomy.