Defence Reform Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 5th February 2014 Grand Committee

Moved by

[Lord Hodgson of Astley Abbotts]

10: Clause 5, page 5, line 3, at end insert “, unmanned aerial systems, distributed common ground systems, ground control and other stations used to support the operation of unmanned aerial systems”

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, in moving Amendment 10, I will speak at the same time to Amendment 11. I have tabled a series of amendments to the Bill, which I have formed into two groups: this one and a second group comprising Amendments 14, 15 and 16, which we shall come to later on. The purpose of both groups is to shed light on an issue that is causing rising public concern: the increasing use of what have been variously called “drones”, “unmanned aerial systems”, and “remotely piloted aircraft systems”. I would argue that the fact that there is no agreed terminology to describe these devices is an indication of the very rapid rate of change and development taking place and, perhaps, of the extent to which the appropriate level of democratic oversight, control and challenge is lagging behind.

It was interesting to note the amount of public and press interest—including international press interest—when I tabled these rather modest amendments to be debated in the Moses Room, which shows that this is a very live issue for many of our fellow citizens. At this stage, these are all probing amendments, but there are serious issues of public policy at stake about which I hope my noble friend will be able to reassure all Members of the Committee. I am grateful to my noble friend Lady Miller of Chilthorne Domer, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs, who put their names to these amendments. I look forward to hearing their particular concerns and contributions later in the debate.

As I said, there are two groups of amendments, but they focus on one issue. I will give some general background which will set both groups in context and enable me to be a great deal briefer when we come to the second group. Finally, before doing so, I need to declare for the record my interests in this and allied fields. I am a member of the APPG on Drones, I am treasurer of the All-Party Group on Extraordinary Rendition and I am a trustee of Fair Trials International. With that—to horse.

Public concern about drones takes, I think, two forms. The first lies in what one might describe as the here and now. The public are concerned about the collateral damage arising from what appears to be an increasingly prevalent—some would say indiscriminate—use of drones. To illustrate, I can do no better than to quote from a letter sent to all Members of your Lordships’ House by Reprieve. It describes a trip to Congress in the United States by Rafiq ur Rehman, a schoolteacher from Pakistan, who was accompanied by his children Zubair, 13, and Nabila, nine. The family were there to talk about 67 year-old Mammana Bibi—Rafiq’s mother, the children’s grandmother and the local community’s midwife. She was killed by a CIA drone strike in October 2012 while picking okra in a field near her home. Zubair and Nabila were also injured when the missile hit and had to be treated in hospital for shrapnel wounds. Speaking to members of Congress on Capitol Hill, Rafiq described his mother as follows:

“She was the string that held our family together. Since her death, the string has been broken and life has not been the same … My family no longer gathers together like it did when my mother was alive … they are afraid to visit because the drone might then kill them, too”.

I leave it to wiser heads than mine as to whether this is a good way to win over uncommitted hearts and minds.

Drones do not act in a vacuum—they act on information supplied to them. The public are anxious to know who is supplying this information and how it is being supplied. The legal context may be simply stated—and, in saying that, I am benefiting from advice given by Jemima Stratford QC. Individuals in a war are entitled to kill each other. That is the doctrine of combatant immunity. In addition, both the law in this country and international law recognise the status of some individuals as lawful combatants engaged in international armed conflict. However, killing an individual outside that framework is, to put it starkly, murder. Assisting in the killing of an individual outside that framework is assisting in an act of murder. The recent killings by drone strikes in Yemen and Pakistan, neither of which is at war with the United Kingdom or the United States, have increased public concern.

That is the here and now. However, public concern is beginning to take on another form. What does the future hold? This year we are commemorating the outbreak of the First World War, 100 years ago in the autumn of 1914. When the young men rushed enthusiastically to the recruiting offices that autumn, they had no real understanding of the killing power of the modern machine gun. If they had, there were fears that their enthusiasm might have been somewhat tempered. We, however, know about the capabilities of the machine gun and the capabilities and consequences of the atom bomb. Moreover, with the technical developments in television, by the 1970s war was being brought into our front room.

Some of you may recall an American singer-songwriter and satirist called Tom Lehrer who was also a professor of mathematics at Harvard University. He said that for the next war, the songs must be written in advance. His contribution went like this, although I shall not sing it:

“So long, Mom, I'm off to drop the bomb

So don't wait up for me

But while you swelter down there in your shelter

You can see me on your TV

While we’re attacking frontally

Watch Brinkley and Huntley

Describing contrapuntally

The cities we have lost

No need for you to miss a minute

Of the agonising Holocaust”.

Humorous though the song was, that trend has been accentuated by the development of the mobile phone—and especially of the mobile phone with inbuilt camera. As a consequence, for quite understandable operational reasons, the Armed Forces have put restrictions on mobile phones on the battlefield.

Here lies the first critical point. The camera and the mobile phone are, in their own way, rather effective peacekeeping devices. The Holocaust occurred off-camera. Today, however, if a soldier fires a shot and it’s on the “BBC News” that night, our political process—albeit slowly, imperfectly and often in the wrong way—begins to engage. Had there been pictures and tweets about the carnage in the autumn of 1914, how long would the war have lasted?

Here lies the second critical point. That door to the free flow of information—arguably so important to the preservation of peace—is slowly swinging shut. A drone is entirely anonymous. It needs no boots on the ground. Yet the damage it does is no less devastating than that done by the man with a machine gun. These amendments therefore are designed to shed some light on these slightly murky points. As the Prime Minister said, sunlight is the best disinfectant.

After those background comments, I turn to this first group, concerned with jurisdiction and seeking to make amendments to Clause 5, entitled “Jurisdiction of Ministry of Defence Police”. The Ministry of Defence Police Act was passed in 1987. That may seem fairly ancient—it is some 25 years old. However, it is a mere stripling in comparison to the Visiting Forces Act that we shall come to in a minute, which was passed more than half a century ago in 1952, or the status of forces agreement passed a year earlier.

Amendment 10 extends the jurisdiction of the Ministry of Defence Police by inserting after the word “hovercraft” additional words about,

“unmanned aerial systems, distributed common ground systems, ground control and other stations”,

as on the Marshalled List. The purpose of the amendment is simple. It is to ensure that drones cannot be included as a type of aircraft, and to recognise that they have an entirely separate legal distinction and terminology. The amendment selects the phrase “unmanned aerial systems” as a preferred descriptor. While I have no biblical adherence to this phrase, there is the challenge that there is no current legal definition of “aircraft” in the existing Air Navigation Order 1970; it contains only a classification.

Whatever descriptor is used, it is nevertheless important that it makes clear that a drone is not an aircraft—a word which, to the public mind at least, implies an aerial vehicle with at least one person inside it. The effect of this amendment would be that the MoD Police jurisdiction unquestionably extended to drones and the like, so they would not in future fall through the gaps in legislation to some netherworld, out of sight and mind. Amendment 11 runs in parallel and extends the power of the MoD Police to contractors operating under the provisions of the Bill—as we discussed in Committee on Monday.

To conclude, whatever one’s views of the morality or efficacy of drones, we need to ensure that the details of their operations are properly recorded and that the MoD Police are unquestionably able to investigate and follow up issues that arise. In an editorial in the Financial Times on Monday—the first day of Committee —about Edward Snowden and GCHQ, a parallel but not identical case, the editor wrote that,

“it is essential the public know that British law is up-to-date and that the checks surrounding GCHQ are proportionate and fit for the complexity of the digital age”.

These amendments seek to achieve the same in respect of the Ministry of Defence: that the law is up to date and the checks proportionate. I beg to move.

[Baroness Stern (CB)]

My Lords, I am very grateful to the noble Lord, Lord Hodgson, for that excellent and wide-ranging exposition. I begin by declaring an interest; I am one of the vice-chairs of the All-Party Parliamentary Group on Drones, established just over a year ago in October 2012 and very active ever since. The core purpose of the group is to examine the uses of drones—which the group decided to call “unmanned aerial vehicles”—by Governments for domestic and international military and civilian purposes. Among the objectives of the group are to examine the legal and ethical frameworks that govern the use of drones, raise awareness of the human rights issues in the use of drones and look for increased accountability and transparency in the use of drones by the United Kingdom domestically and internationally. It is in that context that, as a member of the all-party group, I put my name to these amendments.

I stress absolutely that the all-party group is not opposed to drones per se—far from it. Drones technology has many uses. I heard recently from my noble friend Lord Sandwich that drones are a godsend to archaeologists in Afghanistan because they can locate what is under the ground and pinpoint where archaeologists should dig to find more antiquities. That is a benign and helpful application of the technology. My noble friend Lord Ramsbotham—General Ramsbotham—has educated me about the indispensable role of drones on the battlefield. The APPG is concerned not with opposing drones but with transparency: ensuring that Parliament is well informed and that information about the development and use of drones is put in the public domain so that we may debate the many issues that arise.

Today, we are concerned with military use. As noble Lords will know, a large and wide-ranging law framework governs military activities and weaponry internationally and domestically. However, as the noble Lord, Lord Hodgson, said, as yet no legal definition exists of drones or unmanned aerial systems, and it is difficult to see how there can be governance of drones before they are defined. Currently they are treated by the MoD as aircraft and their special nature is ignored. This amendment gives us an opportunity to consider the terminology and make it clear that it is completely inadequate to lump drones in with aircraft.

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[Lord Astor of Hever]

My Lords, we will cover the noble Lord’s second point when we discuss later amendments and I think that I can give him an assurance on that when we discuss the later amendments. As regards his first point, this Bill is not an appropriate vehicle for the issue. He raises a very important point, but there is no need for additional laws. The existing ones are sufficient.

[Lord Hodgson of Astley Abbotts]

My Lords, I thank my noble friend for his characteristically thorough reply to the points made and I thank my co-signatories for their support. I emphasise to my noble friend that I do not think any of the signatories are against drones. We understand that they are valuable and we do not wish to expose the lives of soldiers, sailors and airmen to unnecessary risk. However, we want to know what is going on. Of course we understand that every effort is made to avoid casualties. This is not a trigger-happy amendment; it is about information, control and transparency. I was glad to hear that my noble friend’s legal advice is that the term “vehicles and aircraft” covers every aspect of drones and there is therefore no gap in this regard. It is important to have that on the record for the future.

I am grateful to my noble friend Lord Roper for drawing attention to some of the complexities of this issue and to the noble Lord, Lord Judd, for his important comments about dispassion. Some element of personal responsibility may become deadened by distance from the point at which the operation is taking place. The noble Lord, Lord Palmer of Childs Hill, very rightly said that this was not the appropriate place for the amendment. He is right, but when the bus comes along you get on board because who knows when the next bus will come along. As he rightly said, there are very few defence Bills and it is important for us to have a chance to debate things that have emerged since the previous occasion.

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Moved by

[Lord Hodgson of Astley Abbotts]

14: After Clause 8, insert the following new Clause—
“Reporting obligationsReporting obligation on contractors
In providing any defence procurement services, the contractor shall—(a) report annually to the Secretary of State or at any more frequent intervals as the Secretary of State may specify on—procured under the arrangements set out in section 1; and(i) the technical characteristics;(ii) capabilities; and(iii) use of equipment and services,procured under the arrangements set out in section 1; and(b) ensure that any person who provides provision of goods or services to a contractor or to the Secretary of State for the purposes of DE&S pursuant to the arrangements set out in section 1 provides the contractor with all information necessary to carry out the contractor’s reporting obligation under paragraph (a).”

[Lord Hodgson of Astley Abbotts]

My Lords, I shall speak also to Amendments 15 and 16. The background to this group is the same as that for the first group, Amendments 10 and 11, and I shall not weary the Committee by repeating it. Amendments 10 and 11 were concerned primarily with jurisdiction—who is entitled to inquire; the second group is concerned with scrutiny—what is done with the information so gathered. This scrutiny will be achieved by inserting new clauses into the Bill.

Amendment 14 obliges contractors to inform the Secretary of State for Defence what procured goods and services are capable of and how they are being used. The amendment has been drafted to ensure that the reporting obligation will automatically broaden to cover any new technological developments in the future. We have heard from noble and gallant Lords about the various kinds of drones—surveillance drones, attack drones and drones that will fight other drones that are now being developed. It is important that the reportage also includes them.

Amendment 15 seeks to improve scrutiny. It does so in two ways: first, it inserts a new section into the Visiting Forces Act 1952 to create a mechanism for scrutinising overseas forces operating in the UK or within UK-operated facilities. The amendment includes a requirement for the RAF commander responsible for liaison with visiting forces to report at least annually to the Secretary of State and a list of factors which are to be reported upon.

It is worth while just to reflect on the position of the luckless RAF commander responsible for liaison. For a sterling officer to be the nut in the crackers—one side of the crackers being GCHQ and the UK Government, and the other being the US Government, the CIA and the National Security Agency—is an unenviable position to be in, and not a career-enhancing one if you are going to rock the boat and possibly say things that will be unpopular. Therefore, his position is very difficult, but that is by the by. However, we were tempted to buttress his position by defining the makeup of the scrutiny group to include, as it says, a member holding high judicial office—such as a judge—and a person who is capable of understanding the technology being used. The amendment defines the right of access to premises, to receive documents or to interview personnel in pursuance of the committee’s duties.

The second method by which this amendment improves scrutiny is by imposing a duty on the Interception of Communications Commissioner to report at least annually on any activity subject to the Regulation of Investigatory Powers Act 2000—RIPA. My noble friend Lady Miller has put down and had answers to a number of parliamentary questions on this particular topic, so I will leave the field clear for her to have a clean sweep in a minute or two.

Finally, Amendment 16 concerns the use to which these reports should be put. A copy of them should be laid—no doubt with redactions—before Parliament, a copy of reports, hopefully without redactions, should be laid before the Intelligence and Security Committee, and there would be a government response to any concerns raised in those reports.

Taken as a whole, these amendments are not designed to reveal details injurious to our national security or that of our allies. I recognise the delicate balance that needs to be struck in that regard. However, they are designed to ensure that at least the Secretary of State for Defence knows what is taking place in the far-flung corners of his empire. From press conferences, it is far from clear about whether he is currently being so informed. As a consequence of these amendments, the Secretary of State will be able to judge whether actions are taking place either as a result of the use of UK facilities or as the result of the transmission of information through UK facilities that are not in accordance with UK law.

In her advice, which I have already referred to, Jemima Stratford QC points out that the USA has placed much reliance on the doctrine of what is called “anticipatory self-defence”. Except in the rarest of cases, it will be extraordinarily difficult to see how an individual being hit with a drone strike can be said to present an imminent threat to US interests, but never mind. More importantly, the UK Government have rejected that formulation of the doctrine of anticipatory self-defence. In his written report to Prime Minister Tony Blair when evaluating the lawfulness of the invasion of Iraq, the then Attorney-General wrote:

“I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law”.

To conclude, as warfare once again begins to be waged in secret, the citizens of a democracy are entitled to know that the actions being taken in their name are lawful. Confidence in our parliamentary system demands no less. I beg to move.

[Lord Astor of Hever]

My Lords—

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[Lord Roper]

I am grateful to the noble Lord for that intervention. He is, of course, a very old friend. However, I feel that the Minister and the noble Lord, Lord Dannatt, in their interventions in the earlier debate, made it absolutely clear that there was no question of any American remotely piloted aircraft being controlled from United Kingdom territory. I think that was the assurance that the noble Lord, Lord Judd, was seeking.

On the other point, there is a perfectly good and important debate as to what is wise and what is unwise. I agree that there is a question of potential counterproductivity and that is why there is a dilemma in considering how these things should be used—whether there is going to be a net benefit, or a net disbenefit. That is a matter which has to be assessed on each occasion.

[Lord Hodgson of Astley Abbotts]

The noble Lord, Lord Judd, has raised a point and I think that my noble friend has answered half of it. He has answered the point about action coming from here. What we need to find out is whether information is being passed on which others take action. If we are doing that, we are assisting an illegal act. We need to be clear about that. It is not just doing things, it is sending information that other people act on.

[Lord Judd]

I should like to support that response to the noble Lord, Lord Roper. I hesitate to use the word to such a long-standing personal friend and in the context of my respect for him, but I think it is a bit naïve to argue that, simply because we have these undertakings on automated aircraft and automated weapons, that is the end of the story. An awful lot of other things could be happening on our territory and on our premises which could be assisting with, for example, the extrajudicial killing, if we see it that way.

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In conclusion, Amendment 14 is clearly within the scope of the Bill, but I am afraid that I cannot agree to it for the reasons I have set out. Amendments 15 and 16 deal with issues that are outside the purposes of the Bill. I therefore ask noble Lords not to move them.

[Lord Hodgson of Astley Abbotts]

My Lords, it is important to have on the record that these amendments are not meant to undermine collaboration with our allies, wherever they may be. We understand that the security of this country depends on working with people and other nations and making sure that we in turn help them maintain their security. It is important that that should be on the record.

What I was concerned about was this: the noble Baroness, Lady Stern, referred to the creation of a culture, and the question is whether we have the right culture around how this issue should be approached. I do not want to stretch the analogy too far, but the problems that happened in the City of London were about culture. People said, “So long as it is not breaking the law, we can do more or less what we like”. What the noble Baroness is putting her finger acutely on is whether we have people who follow the spirit as well as the letter of the law, or whether we are, as the noble Lord, Lord Judd, said, in danger of being seen as hypocritical.

The Minister said, strangely, that systems for supervision and scrutiny exist, but he was not prepared to confirm that they are being used because he could not say that. That is exactly the culture question. The systems are there, but are we using them properly? In that sense, unlike his response to the first group of amendments, this was a rather less than satisfactory response. We have not addressed the question of anticipatory self-defence and whether we are providing means of collaboration with our allies, whoever they may be and who believe that anticipatory self-defence is okay, in things that would be unlawful under UK law. We have had a good first canter around the field. My noble friend Lady Miller has got her teeth into the ankle of an issue and is not letting go. In the mean time, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.