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.
6.15 pm
The noble and gallant Lord, Lord Houghton of Richmond, has, in interventions in your Lordships’ House, warned about the risks posed by the intersection of artificial intelligence and human judgment, and has spoken wisely about the risks posed by technology interacting with human error. As military equipment gets upgraded, we do not know how the Government plan to upgrade legal frameworks for warfare, both on the domestic and the international level, what this will mean for legal protection for our troops, and where accountability will lie if mistakes are made. There is nothing in the Bill that reflects the forward-facing nature of the integrated review.
I am sure the Minister will have been briefed on the provisions of Article 36 of Protocol 1, additional to the 1949 Geneva conventions, which commits states to ensure the legality of all new weapons, means and methods of warfare by subjecting them to rigorous and multidisciplinary review. Unfortunately, as we, the
United Kingdom, are not one of the eight nations in the world that publish their review of legal compatibility, and I have not been able to source a copy of such a review, I am unable to see just how up-to-date that process presently is. I have no doubt that we have complied with our legal obligations in that respect, and if they are tendered today, I will accept the Minister’s reassurances in that regard. If she is unable to comment, will she commit to write about this?
It is right that we tackle vexatious claims and improve investigations, but what happens when claims focus on personnel who were operating drones? The Government have said that they have no plans to develop fully autonomous weapons, but what if claims target the chain of command in charge of them? There remain many unanswered questions which could result in legal jeopardy for our troops. My assessment is that our engagement in future international conflict is more likely to involve military operatives of new technology than it is boots on the ground.
The seminal report of the Committee on Artificial Intelligence—ably chaired by the noble Lord, Lord Clement- Jones—expressed this concern:
“The Government’s definition of an autonomous system used by the military as one where it ‘is capable of understanding higher-level intent and direction’ is clearly out of step with the definitions used by most other governments.”
The committee recommended that
“the UK’s definition of autonomous weapons should be realigned to be the same, or similar, as that used by the rest of the world”,
but that has not happened. That, of course, generates serious questions, not only about interoperability but about the implications for the responsibilities of our troops when they are deployed in a multinational context. My expectation is that the noble Lord, Lord Clement-Jones, will expand on this aspect.
The UN chief, António Guterres, argues:
“Autonomous machines with the power and discretion to select targets and take lives without human involvement are politically unacceptable, morally repugnant and should be prohibited by international law.”
Does the Minister agree? If not, why not?
The final report of the US National Security Commission on Artificial Intelligence, helpfully published on 1 March, states:
“The U.S. commitment to IHL”—
international humanitarian law—
“is long-standing, and AI-enabled and autonomous weapon systems will not change this commitment.”
Do the Government believe the same?
In its consideration of autonomous weapons systems and risks associated with AI-enabled warfare, the commission came to several judgments and recommendations. I shall refer to only three of them. In its first judgment, it says:
“Provided their use is authorized by a human commander or operator, properly designed and tested AI-enabled and autonomous weapon systems have been and can continue to be used in ways which are consistent with IHL”—
international humanitarian law. Have the Government reached the same judgment and, if so, are they willing to share their reasoning with Parliament? Publication of the current Article 36 review of legal compatibility,
as the US does, would be a good first step. Is the Minister willing to at least consider doing so, and if not, why not?
Secondly, the commission concluded:
“Existing DoD procedures are capable of ensuring that the United States will field safe and reliable AI-enabled and autonomous weapon systems and use them in a manner that is consistent with IHL.”
Is the noble Baroness in a position to share a similar judgment in respect of MoD procedures and to explain why she has reached it?
Finally, among the commission’s recommendations was that the US
“Work with allies to develop international standards of practice for the development, testing, and use of AI-enabled and autonomous weapon systems.”
In the event that such an invitation is extended to the UK by the US, would the Government welcome it and participate in such a discussion?
We should not underestimate that drone operators face a worryingly high chance of developing post-traumatic stress disorder. In 2015, Reaper squadron boss Wing Commander Damian Killeen told the BBC that staff operating drone aircraft in Iraq and Syria may be at greater risk of mental trauma. Does the Minister recognise this effect of machines on their operators, despite the fact that they may be physically far away from the action? The Government have said that they want the Bill to protect service personnel from repeated investigations and vexatious claims. Do service personnel who operate UAVs not deserve to be protected, and will they be by this legislation?
No legislation designed to deliver on an overall policy intention to reassure our service personnel in the event that they are deployed overseas can deliver on that intention in this part of the 21st century without engaging the issues which this amendment addresses. Without this or a similar amendment, I fear that this legislation will be out of date as soon as it receives Royal Assent. I beg to move.