Overseas Operations (Service Personnel and Veterans) Bill

Lord Browne of Ladyton Excerpts

Committee stage
Thursday 11th March 2021 Lords Chamber

Moved by

[Lord Browne of Ladyton]

32: After Clause 12, insert the following new Clause—
“Liability for using novel technologies: review
(1) Within 3 months of this Act being passed, the Secretary of State must commission a review of the implications of increasing autonomy associated with the use of artificial intelligence and machine learning, including in weapons systems, for legal proceedings against armed forces personnel that arise from overseas operations, and produce recommendations for favourable legal environments for UK armed forces operating overseas, including instilling domestic processes and engaging in the shaping of international agreements and institutions.(2) The review must consider—(a) what protection and guidance armed forces personnel need to minimise the risk of legal proceedings being brought against them which relate to overseas operations in response to novel technologies,(b) how international and domestic legal frameworks governing overseas operations need to be updated in response to novel technologies, and(c) what novel technologies could emerge from the Ministry of Defence and the United Kingdom's allies, and from the private sector, which could be used in overseas operations.(3) Within the period of one year beginning on the day on which the review is commissioned, the Secretary of State must lay a report before Parliament of its findings and recommendations.”

[Lord Browne of Ladyton (Lab) [V]]

My Lords, Amendment 32 stands in my name and in the names of the noble and gallant Lord, Lord Houghton of Richmond, and the noble Lord, Lord Clement-Jones. It raises a very different matter from those with which we have been dealing until now in Committee. At first sight, the amendment may appear out of place in this Bill. I hope, however, to persuade your Lordships that, far from being irrelevant, it is directly relevant to many personnel who are, or will be, engaged in overseas operations, and that the numbers of those to whom it is relevant will only increase.

The amendment focuses on the protection and guidance that Armed Forces personnel need to ensure that they comply with the law, including international humanitarian law; the best way of minimising the risk of legal proceedings being brought against them; and explaining how international and domestic legal frameworks need to be updated. These are all as a consequence of the use of novel technologies which could emerge from or be deployed by the Ministry of Defence, UK allies or the private sector. In this day and age, the private sector is often deployed with our Armed Forces in overseas operations as part of a multinational force.

The amendment imposes an obligation on the Secretary of State, within three months of the passing of this Act, to commission a review of the relevant issues; sets out what that review must consider; and obliges the Secretary of State, within a year of the date from which it is commissioned, to lay a report before Parliament of its findings and recommendations.

It is remarkable that almost all the debate in Committee so far—both on the first day and today—has been about deployment of military force and the risk to which it exposes our forces, based on past experience. Little or no mention has been made of the changing face of war. I may have missed it, but I cannot recollect any mention being made of that element.

We often criticise armies who train “to fight the last war”. The real problem, however, is that training is based on mistaken notions of what the next war will be like. We have a fair idea of what a future conflict will be like, so we should not be a victim to that mistaken notion. I can easily think of a relatively straightforward current example of modern warfare which encapsulates the challenges that will be generated for our military.

The provisions of Clause 1(3) set out that the presumption against prosecution applies only in respect of alleged conduct which took place outside the British Isles and when the accused was deployed in overseas operations. If a UAV operator works from a control room here in the UK, in support of troops on the ground in a country beyond the British Isles, are they deployed on overseas operations for the purposes of this legislation? Is their conduct taking place beyond the British Isles? Consequently, are the protections afforded by this legislation offered to them? How can this legislation for overseas operations be kept up to date with the blurring of lines between what is and is not the battlefield, without provisions of this nature being made in the Bill?

On the face of it, these may appear simple questions, but I expect the answers are complex. At some time in the future, it is at least possible that a court will disagree with an answer given by a Minister today.

Next week, the integrated review will finally be published. This is the third defence and security review since 2010. It promises to be forward facing, recognising both current and future threats against the UK and describing the capabilities that will need to be developed to deter or engage them.

When the Prime Minister made his Statement on the review last November, he said that

“now is the right time to press ahead”—

with a modernisation of the Armed Forces, because of

“emerging technologies, visible on the horizon.”—[Official Report, Commons, 19/11/20; col. 488.]

The CGS, General Sir Mark Carleton-Smith, recently said that he foresees the army of the future as an integration of “boots and bots”. The Prime Minister has said that the UK will invest another £1.5 billion in military research and development designed to master the new technologies of warfare, and establish a new centre dedicated to AI. He rightly stated that these technologies would revolutionise warfare, but the Government have not yet explained how legal frameworks and support for personnel engaged in operations will also change—because change they must.

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Having said all that, I am aware of the expertise that the noble Lord, Lord Browne of Ladyton, has in these technologies and new domains, conjoined, importantly, with his legal background. I should very much welcome a meeting with him in order to be further briefed on how he sees their potential impact on Armed Forces personnel and the law of armed conflict, and to hear his thoughts on the nature of that important component of engagement with international institutions. That is an invitation I extend to him with sincerity and in good faith, and I very much hope, in light of that overture, that he is persuaded to withdraw his amendment.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, I thank the Minister, for whom I have as much respect and regard as anyone else in this debate. She has been showered with this compliment throughout the whole course of this Committee—quite rightly, in my view. I welcome her invitation to a meeting as much as I welcome the undertaking she has given to write to answer the many questions that have been posed to her. I look forward to all of that information.

I say at the outset that whether it is appropriate for this Bill to contain a provision of this nature should be tested against the proxy question I asked, which is whether a UAV operator in this country controlling a UAV or a drone over another country in an overseas operation is covered by the provisions of this Bill. If that cannot be answered in the affirmative, it is appropriate to do exactly what has been proposed in Amendment 32, if not in this fashion then somehow before this Bill becomes law, because we are asking and will continue to ask people to operate machinery in that way and we should not expose them to risks that others are not exposed to. This amendment seeks to future-proof this Bill. It expects the Government not to have all the answers now but to carry out a review of the implications of the increasing autonomy associated with AI and machine learning for legal proceedings against Armed Forces personnel arising from overseas operations.

I thank all noble Lords and noble and gallant Lords who spoke in this debate. I thank the noble Lord, Lord Clement-Jones, who has an enviable reputation, well deserved, for understanding one of the most difficult issues that face our country for the future, and in the security and military environment in particular; that is, artificial intelligence and autonomous weapon systems of machine learning. His contribution was full of rich information about the nature of the challenges we face, and I thank him for his support for this amendment.

I thank my noble friend Lady Chakrabarti for her support, and I am grateful that she suggested, or perhaps implied, that my interpretation of the Bill as it stands is probably correct. I am reinforced in my desire to see this through because of her support. The noble and gallant Lord, Lord Houghton of Richmond, in his own characteristic way, made a clear argument for engagement with these issues. He has a record of service to our country, an experience which has informed his advice to your Lordships’ House. I would be interested to explore further with him his conclusion that we may end up with forces that are exquisite and unusable in equal measure.

My noble friend Lord Tunnicliffe clearly understands this issue and shared with the Committee on a human level why this matter is important. In a sense, the test that he set for the Minister is a test that she has set herself: that this legislation must deliver on the Government’s policy intention to reassure service personnel in the event they are deployed. It will not do so unless these issues are dealt with properly and openly, so that those whom we send on these operations and engage with understand our appreciation of the legal implications.

I will seek leave to withdraw this amendment, but I warn the Minister that it may come back again—maybe in a slightly different form—at the later stages of this Bill. I also warn her this is but a preface to an issue that will come back before the Government in this form and other forms—that is, debates in this House—because this is going to be the reality of our security and military operations of the future. I say as a caution to her that the committee report that both I and the noble Lord, Lord Clement-Jones, referred to is almost 800 pages long. This is a complicated and difficult subject. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.