Defence Reform Bill

Lord Judd Excerpts

Wednesday 5th February 2014 Grand Committee

[Lord Roper (LD)]

My Lords, I shall speak briefly to this group of amendments but my remarks apply also to a later group. Comments made on this issue will, inevitably, cross from one group to the other.

Many of us have benefited from the advice which the All-Party Parliamentary Group on Drones received from Jemima Stratford QC and Mr Tim Johnston of Brick Court Chambers, which is obviously of great value. However, before we look at this issue again on Report, noble Lords may find it valuable to read the very important interim report that Ben Emmerson QC delivered to the General Assembly on 18 September 2013, which not only considers the way in which remotely controlled aircraft have been used by both this country and the United States in various parts of the world but makes a detailed inquiry into the complications and difficulties of international humanitarian law. He has not come to a conclusion on these matters but his report is of considerable value in explaining the complexities and ambiguities. Members of this House would benefit from reading that report as well as Jemima Stratford’s opinion.

[Lord Judd (Lab)]

My Lords, I speak in support of these amendments. The point that has already been made cannot be stressed too strongly—namely, that rules, regulations and definitions that have been adequate to date need to be reviewed in view of the immense and unforeseen scale of development in modern warfare. It would be irresponsible to assume that the current rules and definitions, which were drawn up in the past, respond adequately to the new realities.

I have absolutely no doubt that the service in which I was privileged to serve, the RAF, is fully committed at the most senior levels to implementing not just what the law says but the spirit of the law. I am sure that that is the case. If it is the case, I cannot see how reviewing the sufficiency and adequacy of existing legislation can do anything but strengthen its position. It is good that these points have been brought forward.

It is very difficult to share my next point with the Committee, as it is not clear whether the issue should be raised now or on later amendments. Reference has been made to the overlap in this regard. I am deeply concerned about whether we as legislators are taking the psychological implications of the new developments seriously enough. I am sure some of those involved in the operations are taking them very seriously. If I put it crudely, it is not out of any hostility to the people concerned; it is just to try to bring home the starkness of the reality with which we are dealing.

I was talking the other day with a good friend whose son has just got a very good engineering degree. What does he want to do with his engineering degree? His ambition is to work in computer games and eventually perhaps have his own firm, I think. There has been terrific change in the nature of this kind of activity and what it can involve. I hope I will not be accused of being irresponsibly sensational, because it does not seem to me that it is irresponsibly sensational at all. It is taking into account the realities of life. When did we begin to drift into a situation where the mental and psychological processes about playing very advanced computer games and the processes of sitting in the Nevada desert, or wherever it is, operating a machine became blurred? How do we continue to take, as we have always tried to take, the responsibility of recognising that war is a last resort and a very grave step to take? How do we now undertake warfare in the context of all sorts of humanitarian obligations and the rest? The Geneva conventions are just one example. I think that for all these reasons there has been a certain degree of complacency among legislators about what is happening and its significance, and I am sure that it is time that this was reviewed. I cannot stress strongly enough my appreciation of those who have brought this amendment forward.

[Lord Palmer of Childs Hill (LD)]

My Lords, I thank my noble friend Lord Hodgson for bringing this amendment forward because it is clear in my mind that your Lordships’ House needs to have a debate on this subject, not just in the APPG but elsewhere. What I am not so happy with is the amendment to Clause 5. The real problem seems to be that we do not debate defence Bills very often in your Lordships’ House and there are very few places one can table an amendment such as this and the other amendment in this group. I therefore appreciate why it is here. However, the noble Baroness, Lady Stern, said drones are treated as aircraft. Clause 5, which relates to the jurisdiction of the Ministry of Defence Police, refers to aircraft and hovercraft, so if a drone is an aircraft, it is in. At the moment, it is not, so perhaps we need some clarification on that, because definitions are important.

A good point was made about unmanned aerial systems, because it is almost giving them a respectable name. The public know the name “drones”, and we now seem to have tried to find a longer, more convoluted phrase. I think a spade should be called a spade. If it is a drone, it is drone. I wonder whether there is a problem.

The real problem as far as the public and the noble Lord, Lord Judd, are concerned is the collateral damage when drones are used. Oversight is essential, but the worry in international legislation at the moment is that if someone in Texas, or maybe Nevada, is operating them, will they be harassed if an error happens? I suppose errors should not happen. President Obama announced changes in the drone programme in May 2013, which has been welcome because it has reduced the number of deaths caused by drone strikes.

--- Later in debate ---

In summary, the current wording in Clause 5 of the Defence Reform Bill fully provides the Ministry of Defence Police with the jurisdiction they need to carry out their duties in relation to any future GOCO and the changes proposed are unnecessary. On that basis, I ask the noble Lord to withdraw the amendment.

[Lord Judd]

As usual, the Minister has been extremely helpful and courteous, but I hope that he will say a word more about a couple of points. First, he stressed the present policy of the UK Government on autonomous weapons. If that is the case, is there not a strong case for establishing this principle somewhere in legislation, if not in this Bill? When war takes place the situation evolves, the pressures are great, and one wants to be certain that established principles continue to be observed. Secondly, will he assure us that when he talks about US forces and what they do and do not do—those forces that operate from our territory—in future any foreign services using our territory must give a firm undertaking, with which we must be satisfied, that they will abide by the same principles that the Government have in place at the moment?

[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.

--- Later in debate ---

[Lord Roper]

My Lords, I apologise for omitting to thank my noble friend Lord Hodgson for these interesting amendments and my noble friend Lady Miller, and the noble Baroness, Lady Stern, for their contributions. I turn to a point made by my noble friend Lord Hodgson in moving the amendment when he quoted from the useful and interesting opinion received from Jemima Stratford. As I mentioned, there is an ambiguity in the approach to international law in the United States and in this country which raises some of the problems that we are having to consider today, in particular the problems that would arise—I realise that the Minister is unable to discuss the transfer of intelligence between allies—if intelligence were able to be used for targeting purposes.

I am extremely grateful for having had the chance to read the interesting interim report of Ben Emmerson QC. The problem is that the United States considers itself to be involved in a non-international armed conflict with al-Qaeda and its associated forces that are transnational in character. That is not merely its view; it is the position endorsed by the United States Supreme Court in the judgment of Hamdan v Rumsfeld. There is a problem in it having that position which, as we heard from the noble and gallant Lord, Lord Stirrup, is not the position in this country. There is a difference in the interpretation of the law. Indeed, the final report of Mr Emmerson will, I hope, help us to clarify it, but that is the problem that faces us at this stage.

We also have to realise that the United States can pray in its own defence some of the UN Security Council resolutions that were passed in 2001 following 9/11. If we look at UN Security Council Resolution 1368 of 2001, or UN Security Council Resolution 1373, we see that they almost gave the United States authority to deal with al-Qaeda wherever it was met. As I say, there is a difference in the interpretation of international law and an ambiguity that leads to some of the problems that we are discussing today. Mr Emmerson provides an interesting discussion of these matters in his report to the UN, and I hope that if we return to them on Report, it will be possible for other noble Lords to have read it.

[Lord Judd]

The noble Lord, Lord Roper, has raised a crucial issue. I am sure he would agree that, having stated that there is a difference in interpretation, we then have to act in the context of what is our interpretation. The danger is that we condone from premises and territory which is ours activity that may be acceptable within the United States interpretation but which is not acceptable within our interpretation. Of course, this can realm into very controversial issues, such as where does extrajudicial killing begin and end? There is the issue of rendition, as we have seen in the past, and so on. That is why it is so crucial to remember that the Minister in his very helpful response to our previous debate gave a specific assurance that he would be able to say things at this stage of our proceedings that would completely reassure us. The point is that our territory and our premises can be used only in terms of our understanding of the legal position and our interpretation of what it is all about.

I should like to make one other point. It is not just a matter of legality. I care desperately about that because I always come back to the point that, in the end, what the hell are we defending if we are not defending the principles of the rule of law and so on? We make an absolute nonsense of our commitments if we rationalise our way out of that.

I am always very worried—and this applies in British domestic legislation too—about where the dividing line between what is effective action against terrorism and extremism and all these cruel and unacceptable happenings becomes counterproductive because it begins to lend ground to those who are trying to recruit for the cause of extremism. One of the arguments that they love to use is, “look at the hypocrisy of these people”. It is, therefore, crucial to be able to demonstrate all the time that we are operating, not only in detail but in spirit, according to the principles we say we are upholding.

[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.