Drones: Code of Conduct

To ask Her Majesty’s Government what progress they have made in preparing a code of conduct for the civilian and military use of drones operating from the United Kingdom; and what negotiations they advocate for an international code.

Lord Judd: My Lords, I declare an interest as a trustee of Saferworld, which has an active involvement in security issues, and as a member of the All-Party Parliamentary Group on Human Rights, whose staff and resources have been immensely helpful in preparing for this debate. I am also grateful to Human Rights Watch, Amnesty International, UNA and others, including various academics, for the material they have sent me. Our own Library in the Lords has, as usual, been a model of relevant information.

There have been a number of exchanges on these issues in both Houses recently, not least the exchange between the noble Baroness, Lady Falkner, and the noble Lord, Lord Wallace of Saltaire, on 7 February, and more recently the illuminating and well informed Adjournment debate in the other place introduced by Nia Griffith and constructively answered by Alistair Burt on behalf of the Government.

Drones—unmanned aerial vehicles—are either piloted by remote control from another location or follow a pre-programmed flight path. They have a wide range of military and non-military uses, including: surveillance and reconnaissance; disaster relief and search and rescue; anti-poaching operations; destruction of enemy installations and killing of enemy forces; and counterterrorism and counterinsurgency. More than 70 nations are involved in the use or production of drones, including the USA, the UK, Israel, South Africa, Saudi Arabia, China, India, Brazil and Turkey.

The potential of drone development for civilian purposes is considerable and will increasingly involve the CAA but it will also raise many other issues of much wider significance, not least industrial and commercial espionage and yet more intrusion on privacy and human rights. The development of autonomous robotics, which enables vehicles, once activated, to operate without further interventions by a human operator, will accentuate the challenges to be faced, as will the complex relationship between security and liberty.

In the military sphere, lethal autonomous robotics with the ability, once programmed, to select and decide to engage targets without intervention by an operator and to fight after communications have been jammed will, as Nia Griffith said in the other place, represent a “revolution” in weapons technology, with huge command and control, legal, ethical and accountability implications. Electromagnetic pulse attacks and cyberattacks accentuate all this and some experts predict that relatively soon vehicles could be as small as insects.

This is a nightmare scenario. Surely it cannot be a matter of just passively waiting for the forthcoming report by Ben Emmerson, the UN special rapporteur on counterterrorism and human rights. Government and shadow government should already be actively engaged in thinking through what is overtaking us and leading international analysis on what urgent action is imperative before the horse has bolted and we lose control—if, indeed, the horse has not already bolted. I hope that the Minister and my Front-Bench colleague will be able to reassure us about this.

The US is the most prolific user of armed UAVs, mainly in Afghanistan, Pakistan and Yemen. It is estimated that under President Bush there were more than 50 strikes and that more than 400 strikes were authorised during President Obama’s first term. The UK seems now to have 500 drones and the RAF is believed to have launched at least 365 strikes in Afghanistan since May 2008. There are reports that the RAF aims to have a third of its aircraft remotely controlled by 2030.

A new generation of more powerful UAVs is contemplated, with all the familiar procurement dangers of obsolescence before availability. The UK’s rules for engagement are still far from clear, particularly as they affect civilians and those not directly participating in hostilities. However, it is known that civilians have been killed. Has the UK itself conducted any targeted killings? Does the UK use the International Committee of the Red Cross’s definitions of combatants and civilians? I hope that the Minister can convince us that lines of accountability are in place for the UK’s use of drones when engaged in joint operations with the US.

The perceived advantages of armed drones are that they can attack targets accurately, quickly and stealthily while reducing the danger to pilots, civilians and troops who might otherwise have to be deployed. The perceived disadvantages are counterproductivity, including the alienation of populations where they are used, civilian deaths and injuries that play into the hands of the extremists and provoke recruitment to their cause.

It is difficult to see how the use of drones improves governance in a nation that offers a haven for terrorists, or strengthens local administration, or encourages dialogue with tribal leaders, or improves the training and reliability of the local armed forces and police services to whom it is planned to hand over increasing responsibility. In this respect, the total counterproductivity of so-called double tap strikes, where rescuers going to aid those hit by the first blast are attacked by a follow-up strike, cannot be overestimated. Indeed, such action may well constitute a war crime.

The increased use of drones by the United States has doubtless been influenced by growing public pressure to keep down troop losses and costs and a perceived need to deal covertly with the disparate core of the al-Qaeda network in Pakistan, Yemen and Somalia where there is no internationally recognised conflict, thus enabling the intelligence agencies rather than the military to operate the drones. Another factor is the international and domestic criticism of secret detention, rendition and Guantanamo. Killing has become a more attractive proposition than making captures, but where does that leave the rule of law, about which the world is so repeatedly lectured? Where does it leave the credibility of the alliance? Where does it leave the society which all this is supposed to defend? Surely either we uphold the rule of law or we do not. To circumvent it is as hypocritical and wrong as it is counterproductive. I trust that the Minister will confirm that this is the unequivocal position of the Government.

I note that the US Government are to shift drone operations from the CIA to the military, but if in effect this is to the Joint Special Operations Command, one of the very least transparent elements in the military, will there really be improved accountability? Meanwhile, the CIA will remain in control in Pakistan, with any shift to the military deferred to 2014. However, there is now at least some evidence of a significant decrease in drone activity in Pakistan.

Much recent debate in the US has centred on the legitimacy of target killings and signature strikes. In that debate, drones have been described as, “remote-controlled assassination devices”. A signature strike is when an operator identifies some combination of traits—the signature—that makes it acceptable to engage a target. However, it has been strongly argued within the US itself that no US President should have the sole power of life and death over civilians, whether US citizens or not, and that although the US can target al-Qaeda suspects who are claimed to be beyond the reach of the law on the basis of what they describe as legitimate self-defence, that power must be subject to judicial and congressional oversight. In response to the debate, President Obama has recently announced new policy guidance. This limits drone attacks to targets who are,

“senior operational leaders of a terrorist group who pose an imminent threat to Americans and cannot feasibly be captured”.

“Imminent” could be argued to be an improvement on what was used before—“significant”, but it is still disturbingly wide. Nevertheless, the President has said that he is to discuss with Congress at least some monitoring of the Administration’s decision-making.

I have concentrated my brief remarks today on the military dimension of drones, but the civilian dimension is acutely pressing as well. Safety, security, rational efficiency and sanity are all at stake. Domestic and international action is urgently required. We have done it on aviation law and we have led on it with the arms trade, mines, cluster bombs, chemical and biological warfare, and many aspects of nuclear activity. I argue that we need to do it again because it is my conviction that to continue drifting towards total loss of control is as unforgivable as it will be disastrous.

7.34 pm

Lord Tunnicliffe: My Lords, I thank the noble Lord, Lord Judd, for tabling this debate. I wish that more noble Lords had taken part to discuss this important issue. I also thank the Library for its extremely useful briefing note. I agree with much of what the noble Lord, Lord Judd, has said, but at the beginning I must state categorically that we on these Benches believe that unmanned aerial vehicles are a good thing, particularly in the military environment, and that by a “good thing” we mean that we believe that their value-added exceeds their risks. We agree with the noble Lord that appropriate controls over their use are essential.

In essence, the noble Lord’s question is this: do we need a code of conduct, along with regulations for the manufacture of and the operation of drones, and should these be international? I shall touch as quickly as I can on three areas, the first of which is safety. The operation of drones in UK airspace raises three areas of concern: collision; what we might call “terrain strike”, where drones fly into buildings and so on; and the possibility of technical catastrophe. Noble Lords will know that their computers are of a generation that is more adolescent than mature: that is, they are brilliant but they fail frequently. All these possibilities generate risk in the air environment, and any code of conduct or process of operation in UK airspace must cover all these risks. The risks are a particularly difficult regulatory challenge because drones do not have an established position in UK airspace at the moment, and therefore safety could be assured by simply denying them access. That makes it even more important that we understand the value that drones provide, the risks that they present, and that there are appropriate procedures to mitigate those risks.

What is the value of UAVs? The answer can be divided into two parts, the first of which is what I would call observation, and the other is the military delivery of lethal force. Observation can be secured by manned platforms: helicopters and fixed-wing aeroplanes. What is special about the drone in this observational area and what are the new challenges? I contend that the potential for drones to be both cheap and small introduces a new series of challenges for society as a whole. Because drones are potentially cheap and small, they have the potential to be both numerous and covert. The military use of drones for observation and reconnaissance is unexceptionable. Armies, navies and air forces throughout history have used all reasonable methods to secure information about their enemies, and I believe that drones are but part of that suite of capability. I do not believe that the military use of drones in the observation and reconnaissance role is particularly contentious.

However, in the non-military role, the potential for problems emerges, and we should address it. The non-military role divides into two: the state and the private sector. In the state sector, there is the potential for observational roles for the security services, the police and some other services. As the briefing note points out, we have some legal protections in the police and perhaps some in the security services, but by no means are they comprehensive, so one of the areas that has to be addressed is that of the whole suite of law covering operations that the state must obey in the use of this new technology.

In the private use of drones, one can certainly see the potential for them developing the inspection of hazardous environments and so on, but the area of most concern to me is that of intrusion. The fact that it is probably technologically feasible within a relatively small number of years to have an affordable drone the size of an apple that has a high-resolution camera in it means that there is a whole new potential for intrusion in the private environment. We know that our present laws are ineffective on intrusion by the press, and we are at the moment agonising over that with respect to Leveson. Surely, this new area must be included in those concerns to make sure that the whole issue of privacy is considered when developing the codes of conduct for these things.

The final and most contentious area is the use of drones for the delivery of lethal force. They are very effective in this role in uncontested airspace. They are able to deliver force with great precision and are therefore better than many other weapons that have defended us in the past: they are not indiscriminate like cluster bombs, mines or even modern artillery. They have the ability to loiter and be persistent, which

allows for high precision, smaller munitions and the potential for less collateral damage. They also eliminate operator exposure.

The regime for their use essentially uses the manned platform regime, which involves military advisers in all aspects, including targeting and compliance with international law; there is a human decision-maker. As far as we know, society is not contemplating autonomous use. All those things are there. However, it is this very precision that causes us to think about the drone and that brings home to us that it is about damaging the enemy and killing them. Very usefully, the pack refers us back to Robert E Lee’s statement:

“It is well that war is so terrible—otherwise we would grow too fond of it”.

If war has no risk to the aggressor, how do we ensure that we do not become too fond of it? We must retain the horror of war itself. As the note points out, it is the remote warrior that is at the centre of this whole dilemma. The retention of the remote warrior as the stepping stone, the filter, and the way in which the state’s use of lethal force is used is absolutely crucial. We certainly, as I have said, see no movement towards autonomous use.

We need codes for the use of drones and the use of lethal force, which need to bigger and probably more effective than those we have now. They should be developed through a transparent process, even in respect of military use, so that society knows how lethal force is being delivered and that appropriate, politically accountable systems ensure that this frightening delivery of lethal force by our remote warrior is properly controlled. We agree that there is a need to look at new controls and that, where possible, these should be developed internationally. We believe that they should pass the test of the public having confidence that the operation of drones in UK airspace will be safe, that their use in non-military applications will preserve our privacy and that their military use will ensure the protection of national security and the value system of our society.

7.43 pm

Earl Attlee: My Lords, I start by thanking the noble Lord, Lord Judd, for securing this evening’s debate and other noble Lords for their contribution. Your Lordships will note that the question is about civilian as well as military use of these aircraft and the House will be aware that I answer for all of Her Majesty’s Government. I share the regret of the noble Lord, Lord Tunnicliffe, about the number of speakers and am grateful for his very measured contribution to our debate.

First, we should understand that we are talking about remotely piloted aircraft systems, or RPAS. We are most certainly not talking about “drones” as exemplified by the “doodle bugs” of the World War II era. The location of the cockpit does not change the essential function of a professional, qualified pilot in terms of his or her direct responsibility for the safety and overall management of a flight. I do not foresee a situation where a human’s ultimate responsibility for the safe flight of a remotely piloted aircraft will be replaced by fully autonomous technologies.

I will follow the split of the noble Lord, Lord Tunnicliffe, and cover civilian RPAS operations first. These are closely regulated by the Civil Aviation Authority and are treated in the same manner as that of an equivalent manned aircraft. This applies to all aspects of unmanned aviation, from the initial design and construction, or airworthiness, through to the safety requirements of how it is flown and operated. This viewpoint is shared internationally. We certainly have no intention of denying access to UK airspace—we just want to keep it safe.

Small unmanned aircraft are those under 20 kilograms weight, flown at short range and always within the sight of the person flying them. These are overseen to a lesser, but proportionate, extent by the CAA but, in certain circumstances, such as for commercial use, a permission is needed. They are also subject to the Data Protection Act and the Regulation of Investigatory Powers Act. The noble Lord, Lord Tunnicliffe, talked about intrusion. He will be aware that the activities of Google also cause similar concerns and that this concern is not unique to RPAS.

The House should not overlook the technological importance of the growth of the remotely piloted aircraft sector. For example, systems which can be used to detect other aircraft could, in time, greatly assist all pilots, in the same way that aircraft transponders have contributed to safety across the sector. I would point out that the UK’s ASTRAEA consortium is at the forefront of international efforts in this field. The noble Lord, Lord Judd, told the House about a wide range of uses including anti-poaching operations. Noble Lords will have read the article in this week’s Sunday Times about the use of RPAS to assess the health of a vineyard in France—a very commendable use, I would suggest. Surely, this is the start of yet another technical revolution facilitated by the ubiquitous modern electronics. The noble Lord, Lord Judd, is right of course when he says that the potential for their development is considerable.

The overall objective of the Government and the European Commission is to enable the full and safe integration of remotely piloted aircraft into the total aviation system so that they share the same airspace as their manned counterparts. With UK and EU input, the International Civil Aviation Organization is currently developing RPA guidance material, due for publication in autumn 2014, with standards expected about two years later. Within Europe, the Commission’s RPAS roadmap, published on Thursday 20 June 2013, is aimed at an incremental integration of RPAS into European airspace from 2016. To achieve this, there are a number of significant technical challenges to be overcome, primarily concerned with ensuring the RPAS is airworthy and has the capability to avoid collisions. However, until the technological and regulatory hurdles can be safely overcome, operations of larger remotely piloted aircraft will continue to be restricted to segregated airspace. For these reasons, therefore, my view is that there is already a suitable framework in place to regulate the operation of civilian remotely piloted aircraft and that no additional codes of conduct are required.

I now turn to the military element, which I suspect is of more concern to the House. Although the MoD operates a number of unmanned aircraft systems, Reaper is the UK’s only armed remotely piloted aircraft system and its only operational use is in support of UK and coalition ground forces in Afghanistan. Although predominantly used for intelligence, surveillance and reconnaissance tasks, the aircraft is also armed with precision-guided weapons, which offer an attack capability if needed by ground commanders. The system is operated by highly trained, skilled and qualified RAF pilots in accordance with the principles of international humanitarian law and the UK’s rules of engagement, which are identical to those used by crews of manned combat aircraft. That applies even for joint operations with US forces.

The UK’s selection and prosecution of all targets is based on rigorous scrutiny. Targets are always positively identified as legitimate military objectives and every effort is made to ensure that harm to civilians or damage to civilian property is minimised. The Government have a longstanding policy of not divulging the detail of our rules of engagement; that would give our adversaries useful information about how and when we might choose to use lethal force. I also gently remind the House that the pilots operate under military discipline. Similarly, the RAF has well established command, control and supervisory frameworks that I have seen on exercise. I do not believe that anything extra needs to be provided for.

The noble Lord, Lord Judd, suggested that the UK military has 500 RPAS. However, there are currently only five armed RPAS. Of course, rather smaller RPAS are used for tactical surveillance. The use of remotely piloted aircraft systems is no different from other airborne or indeed ground-based attack systems. The only difference from a traditional aircraft is that their cockpits are on the ground. The systems can only launch their weapons when specifically commanded to do so by the pilot. They do not have the capability to launch any weapons autonomously. In addition, there are no future plans to replace military pilots with fully autonomous systems. I know that that is a matter of great concern to the noble Lord, Lord Judd, and the whole House. The MoD has no intention of developing any weapons systems to be used without human involvement. Although the Royal Navy has defensive systems such as Phalanx that can be used in an automatic mode, to protect personnel and ships from enemy threats like missiles, a human operator oversees the entire engagement. Furthermore, all our remotely piloted aircraft systems used in Afghanistan to protect troops on the ground are controlled by highly trained military pilots. There are no plans to replace skilled military personnel with fully autonomous systems.

Lord Judd: I am extremely grateful to the Minister for this reply. Could he clarify what is meant by “no intention” to deploy these vehicles other than with human involvement? What does human involvement amount to? How much automatic action in terms of analysis, identifying a target and deciding to hit it will be left to the device in future vehicles once they are launched?

Earl Attlee: My Lords, the answer is currently none. It requires human involvement to launch the missile at

the target. RPAS cannot currently engage a target without being commanded to do so by the pilot on the ground.

The noble Lord, Lord Judd, implied that communication with and control of an RPAS could be lost in the event of an electromagnetic pulse. If that was the case, the RPAS would probably lose all its capability, just like any other aircraft.

The noble Lord touched on the perceived disadvantages of the military use of RPAS. As of 20 June, the UK Reaper RPAS has employed 394 precision-guided weapons. There has been only one known incident that resulted in the deaths of civilians. On 25 March 2011, an attack on two pick-up trucks resulted in the destruction of a significant quantity of explosives and the deaths of two insurgents but, sadly, four Afghanistan civilians were also killed. In line with current ISAF procedures, an ISAF investigation was conducted to establish if any lessons could be learned or if any errors in operational procedures could be identified. In that case, the report concluded that the actions of the Reaper crew had been in accordance with extant procedures and rules of engagement.

The noble Lord, Lord Judd, asked if the UK had conducted any targeted killings and whether the UK uses the ICRC definitions of combatants and civilians. Her Majesty’s Armed Forces will engage the enemy in accordance with international humanitarian law and the UK rules of engagement. The necessity and legality of engaging the target does not depend on the means of doing so. The noble Lord stated that we either uphold the rule of law or we do not. He is right. I can confirm that Her Majesty’s Government uphold the rule of law. How the US Government conduct themselves is not a matter for me to comment on and I have already touched on joint US/UK operations.

The noble Lord, Lord Tunnicliffe, talked about the remote warrior. Our experience of operating the Reaper remotely piloted aircraft system in Afghanistan suggests that Reaper aircrew are just as if not more connected to the situation on the ground when compared to operators of other aircraft types. That is because they fly missions over Afghanistan for years at a time and not in short-duration rotations. Remotely piloted aircraft can loiter over areas of interest for a considerable time, providing that much-valued intelligence picture. I remind the House that surveillance is their primary role. Should an attack be requested, their persistence enables them to assess a target in detail and select an optimum time for attack that minimises the risk of civilian casualties. Indeed, because of this increased awareness of the ground situation, enabled by the connectivity that a ground-based cockpit offers, there have been many occasions when crews have elected not to fire a weapon.

I will say a few words about the ASTRAEA project. ASTRAEA—Autonomous Systems Technology Related Airborne Evaluation and Assessment—is a UK industry-led consortium focusing on the development of technologies, systems and procedures with a specific emphasis on unmanned aircraft systems. The consortium is led by seven UK companies—AOS, BAE Systems, Cassidian, Cobham, Qinetiq, Rolls-Royce and Thales—plus a further 70 SMEs and universities. The aim of the programme is to enable the routine use of UAS in all classes of airspace without the need for restrictive or specialised conditions of operation. The £62 million programme was split into two phases, each lasting three years. Phase 2 ended on 31 March 2013. Some 50% of the funding came from industry partners, with the remainder from government—the TSB and the regions. Future activity under the ASTRAEA brand is the subject of ongoing discussion within the consortium.

I welcome this debate, which has explored the application and use of remotely piloted aircraft. The noble Lord, Lord Judd, is right to question the implications of any new and growing technology such as this. To reiterate: RPAS are aircraft under human control. The very clear regulations and guidance that apply to aircraft also apply to RPAS. I am confident that no further code of conduct is required.

House adjourned at 7.57 pm.