Armed Forces Bill

Lord Craig of Radley Excerpts

Committee stage
Monday 8th November 2021 Grand Committee

[Lord Lancaster of Kimbolton (Con)]

My Lords, I, too, oppose this amendment. I take the opportunity at the start of the session to remind your Lordships of my interest as a serving member of the Army Reserve.

I was going to intervene on the noble Lord, but perhaps I will give him this opportunity to intervene on me in reply to this question: how many members of the Armed Forces have contacted him or the noble Lord, Lord Coaker, to ask for this? Surely somebody has. I say that, because at no point in my 33 years’ service in the regular and reserve has this ever really been a topic of discussion for serving members of the Armed Forces. If the noble Lord wants to intervene on me or perhaps answer the question when he comes back at the end, I would be fascinated to know how many members of the Armed Forces have actually asked for this. I have a horrible feeling that the answer is none. I certainly have no experience of that.

Equally, I share the noble and gallant Lord’s concerns about the impact on the chain of command. Given the unique circumstances that we find ourselves in in the military, certainly on operations, there is a distinct way of doing things with the chain of command. There are ways through the chain of command to make your complaints. Of course, we now also have the Service Complaints Commissioner. We have quite a developed sense of how this works in the military, which is why I go back to my first point: I just do not sense that there is any demand for this at all within the community the noble Lord is seeking to impose it on.

Where there are areas of concern, for example pay, we have quite a developed system with the Armed Forces’ Pay Review Body. I have given evidence to this body as a Minister. It is a very considered body, it is independent and its recommendations have been taken very seriously by successive Governments now for many years. We have seen that in the annual pay award, which the Government are forced to respond to

I suppose my principal opposition to all this is that I just do not understand where the demand is coming from, other than political parties potentially wishing to impose their values on our Armed Forces.

[Lord Craig of Radley (CB)]

My Lords, I do not support this amendment either. Indeed, I fully endorse the remarks of the noble and gallant Lord, Lord Boyce. I do not for a moment question the good faith in and the fulsome support of the noble Lords, Lord Coaker and Lord Tunnicliffe, for the Armed Forces. However, I believe that there is a concept, of which this amendment is an example, that has been aired from time to time over the past 30 years and more—a concept that seems to have sprung in part from the end of the Cold War in the late 1980s. The concept, or supposition, was that the Armed Forces were “civilians in uniform”, so their treatment, expectations and everything else about their daily lives should be seen and fashioned in that civilian primary context. However, it is a false premise.

I believe that the proposal in this amendment has been floated unsuccessfully more than once since the 1980s. Of course, members of the Armed Forces, like all their civilian counterparts, are human, but members of the Armed Forces have duties and responsibilities unmatched in the civilian environment. The fact that we are dealing with an Armed Forces Bill that affects the lives and well-being as well as the fighting efficiency of our Armed Forces underlines that point in spades. The fact that this Act has to be renewed every year and owes its origins to the time of Henry VIII exemplifies the unique difference in treatment, both in law and more generally, of the Armed Forces from the civilian world of employment over centuries.

Whether on or off duty, the behaviour of service personnel may be much praised, but if they fall short of good behaviour it is their service as well as themselves that attracts bad publicity and opprobrium. The more senior the individual, the greater the public dismay at poor or reprehensible behaviour. Both on or off duty, the service individual has a duty to behave responsibility, and who or what has or should have the responsibility to lead and encourage that? It must be the chain of command.

I have many times in my own experience explained why this is so fundamental to the ethos and fighting efficiency of the Armed Forces. The noble Baroness, Lady Goldie, spelled all this out in the clearest of terms in her introductory remarks in the first sitting of this Committee. She said, and it is worth quoting:

“It is worth emphasising that members of the military are governed by a more stringent set of rules and restrictions than those of us in civilian life. These rules are designed to maintain discipline and promote operational effectiveness so that they can get the job done. Many of these additional rules and restrictions to which service personnel are subject apply regardless of whether they are on or off duty.”—[Official Report, 27/10/2021; col. GC 146.]


That is worth listening to and remembering.

The regard for an application of such a unique regime must rely primarily on the chain of command. I am not alone in expressing concern and, at times, even dismay at the way in which the chain of command’s uniquely important role has been set aside or weakened, sometimes in the search for more transparent justice. However, no judicial system is perfect. The imperfection is processed and managed by gradations of justice, but that does not make it infallible.

The introduction of an Armed Forces federation, regardless of whether such an organisation could perform alongside the chain of command without confusion, overlap or mismanagement, would once more be to underrate the chain of command’s importance to the efficiency and ethos of the Armed Forces. Indeed, I am not sure, as the noble Lord, Lord Lancaster, was saying, on what research or examination the noble Lords, Lord Coaker and Lord Tunnicliffe, have undertaken in support of this amendment. Like the noble and gallant Lord, Lord Boyce—and, I believe, all chiefs of staff since my day, over 30 years ago, including the present holders of that office—I agree that an alongside federation as proposed in this amendment would be a grave mistake. That body of expert opinion should be heeded. I do not support the amendment.

[Baroness Smith of Newnham (LD)]

My Lords, I fear that the noble Lords, Lord Tunnicliffe and Lord Coaker, will not have very much support this afternoon. We on these Benches are also somewhat sceptical about the proposed amendment. I note that the noble Lord, Lord Tunnicliffe, said that this was not a trade union, which we would clearly oppose, but it is also not entirely clear what an Armed Forces federation would bring that would serve an appropriate and necessary purpose. We therefore share a lot of the reservations raised by the noble and gallant Lords, Lord Boyce and Lord Craig of Radley, and by the noble Lord, Lord Lancaster. In particular, what precise problems do the noble Lords believe will be served by having this federation? In particular, in what way can it serve efficiency? Adding another mechanism does not necessarily seem to be a way in which to help efficiency.

The one area where I think something might be useful that would not, I hope, undermine the chain of command is that on some occasions, particularly at times with issues of pensions and pay, there could be better lines of communication. What was fed to me occasionally when I was involved in the Armed Forces Parliamentary Scheme was not that people were saying, “We must have representation and a trade union or an Armed Forces federation”. It was more that they would like to understand better what was going on. So slightly better lines of communication would be welcome.

However, I do not think there is anything in this amendment that will really be necessary or particularly useful. In particular, I have reservations about proposed new Section 333B(2)(a), (c) and (d). What will the Secretary of State be providing on membership, voluntary subscriptions or financial support for this Armed Forces federation? Will those really be useful expenditures? Will they help our security, our defence or our Armed Forces?

--- Later in debate ---

[Lord Houghton of Richmond (CB)]

My Lords, it is a pleasure to speak in support of this amendment. It is one of the few elements of the Bill that seeks to get ahead of the game rather than just play catch-up. My particular perspective is that there is one element of the new security challenge that I feel has escaped proper consideration, one for which there seems no comprehensive or coherent plan of action, which is the issue most commonly referred to as “lawfare”.

To my view, the law is potentially one the most powerful weapons that we have in the security context of the age. It is both a weapon of defence that we should use to protect ourselves from the malign activity of others, and a weapon of attack that we should use to liberate our own freedom of action. As had been said, a fundamental deduction from the recent integrated review was that, within what is a significantly changed strategic context, we now live in a persistent state of adversarial competition, but one in which the resort to formalised warfare at scale is, perhaps by choice, avoided. The preferred vectors of attack in this competitive world are not, therefore, active, large-scale military operations, but more subtle, more deniable and less attributable activities.

The domains of active warfare are no longer necessarily primarily land, sea and air, but space, cyber and what is called the “cognitive domain”. Whereas traditional warfare has rules and laws and accepted norms of ethics and morality, the new character of grey-zone warfare is one in which our enemies exploit, for advantage, the absence of a legal framework within which to operate. So the new vectors of attack are activities such as disinformation, multiplied by internet bots; deniable cyber offensive activity; proxy terrorism; and political assassination, potentially using international private military companies.

More specifically in relation to this amendment, technological advancement in the areas of artificial intelligence, machine learning and autonomous weapons systems also offers scope for our adversaries to deny us their potential benefit while they exploit their unattributed use simply because no accepted legal framework for their authorised use yet exists. This context means that our principal geopolitical adversaries can employ methods that are both malign and aggressive but which we find difficult to respond to because we are unclear about what is morally, ethically and legally permissible. We risk, in effect, allowing our enemies to win without fighting.

In this House, during the passage of the overseas operations Bill, I bore witness to—forgive me—some remarkably contorted debates that appeared to present the law as either something inviolate to change or else an irremovable object that needed elegant methods of circumnavigation. I fear that our enemies will exploit our legal complexities to undermine our morale and devalue our credibility as an ally, among other things.

My view is that the only practical way to respond to the situation I have described and the one described in the integrated review is to start to use the law to our advantage: to go on the legal offensive, to reimagine our use of the law not as a time-honoured constraint on activity but as a weapon to be employed to liberate and confirm the legal boundaries of our own freedom of action while bringing much-needed constraint to the malign activities of our enemies. The Government need to give serious thought as to what aspects of this legal offensive need prioritisation. This House, consisting as it does of far more legal minds the military ones, has a significant role to play, but unless global Britain can make a meaningful contribution to the re-establishment of internationally accepted norms of morality, truth and justice, some might seriously undermine the willingness of our people to fight for them.

My strong view is that this country has all the necessary skills to embark on lawfare. I hope that, within their stated intent to help shape the future international order, the Government have the political will to do so as well. I believe the amendment is a small step in the right direction and it has my unreserved support.

[Lord Craig of Radley (CB)]

My Lords, I support this amendment and agree that there is an increasing need for clarity not just today but in the immediate future about the legality of, for example, remote aerial vehicle kinetic operations that involve loss of life, whether military, paramilitary or civilian. Many recent operations have been conducted on an asymmetric footing and not all perhaps with formal, clear-cut international approval. Of course, the right to self-defence is well understood, but how confident are we that emerging technologies in defence weapons systems and their oversight will remain invariably with a human in ultimate control? How it that to be maintained in order to comply with the present laws of conflict as new weapons systems with new technologies are deployed? Are the laws of conflict being overtaken by the possibilities of new types of lethal weapons systems?

Presumably the legality of a remote aerial vehicle operation applies to long-distance control from ships as well as to that from a land base that is remote geographically from the target. Does that base have to be on national territory? What if it is not? What if the operation of the remote vehicle is shared with an ally? How has the operation been approved? What justifications are required for an armed response or for initiating one?

What if the child of a non-combatant civilian accidentally killed by a remote kinetic strike subsequently grows up and seeks to sue the individual or individuals responsible for the control or authorisation of the attack that killed their parent? Will the loss or destruction of any official records of the attack be any sort of viable defence?

As technology moves defence capabilities forward, we will soon enter the era of loyal wingman UAVs and how they interact with their human control. Swarming mini drones are also emerging. There will soon be more, as novel digital technologies are exploited; for example, in the Tempest programme, although I do not have knowledge of secret projects.

The Armed Forces personnel—and this is the key point—involved in kinetic operations exploiting these novel technologies must have absolute clarity about the legal position in which they are required to operate. It is time to know more about how the Government are examining this issue, as I am sure they must be. It is time to be kept informed about the considerations of this complex legal issue as it evolves. Reports from the Secretary of State to Parliament are a must. A review, which should be already in hand, should be reported to Parliament.

[Baroness Smith of Newnham (LD)]

My Lords, I rise as a Liberal Democrat to support this amendment and, like the noble Lord, Lord Browne, to apologise that my noble friend Lord Clement-Jones is not able to be present in Committee today. He asked an Oral Question last week, to which the Minister responded:

“UK Armed Forces do not use systems that employ lethal force without context-appropriate human involvement.”—[Official Report, 1/11/21; col. 995.]


I was not sure that the Chamber fully understood what “context-appropriate human involvement” was. It was a phrase that the Minister used many times. I wonder if she could elaborate this afternoon a little more on what she meant and whether now might not be the time to think a little more about AI, machine learning and some of the forward-looking issues. As the noble and gallant Lord, Lord Houghton of Richmond, pointed out, this would be a forward-looking aspect to the Bill. It is surely time for us to think about that, because the ethical and moral questions of people being killed by autonomous weapons that have a life of their own are unconscionable.