---

Armed Forces Bill

My Lords, it would be difficult for me to overstate the importance of this subject, which is why we have had a number of briefings on rules of engagement during the debates on this Bill. I am very grateful to noble Lords who have attended those briefings and discussions that we have had in this House and at the Ministry of Defence. So I will speak at some length on this matter. As we have debated the Bill, there have been clear differences of opinion on a number of issues, but on the matter of rules of engagement there has been a higher level of misunderstanding across the House than on any other issue, which is why we in the Ministry of Defence has taken so much trouble to try to explain to noble Lords the practical purpose of rules of engagement. Perhaps I may expand on that a little. Rules of engagement are key documents vital to the success of every operation. They are always classified to ensure that information about the way our forces will operate during a mission does not get into the public domain or into the hands of the enemy. Despite that, at a briefing held on 23 October for noble Lords, we took the unusual step of showing copies of actual rules of engagement for an operation. The reason we did that was to give noble Lords an opportunity to understand the way in which they are written, their complexity and their purpose. I think that those noble Lords who were able to attend the briefing found them illuminating and perhaps even surprising. Rules of engagement give our commanders the political and military framework to achieve their mission, including limits on the use of force. They must be consistent with the law, of course, but their purpose and even their language is operational. Rules of engagement are and must be flexible. They must not and do not tie commanders’ hands unnecessarily. They leave important decisions to commanders on the ground and those commanders need and value this responsibility. Rules of engagement are more often than not specific to individual missions. No two profiles are the same. Crucially, they can be modified quickly to meet the needs of a changing threat or a changing mission. Rules of engagement must retain these key characteristics. If they do not, it would damage our operational effectiveness. To give rules of engagement statutory force in the way suggested here would be prejudicial to those characteristics on operations. Servicemen know that the rules of engagement will help them to conduct operations in a way consistent with the law, but each serviceman still has a responsibility to carry out his role lawfully. To that end, personnel rely on a combination of their training and detailed guidance. I shall address the points made just a moment ago by the noble Lady, Lady Saltoun, because she is absolutely right: it is vital for the individual soldier to have confidence in the basis on which he can operate so that, under pressure, he is able to make clear, split-second decisions with a level of confidence and clarity. But giving statutory force to the rules of engagement is not the way to achieve it. I recognise that Amendment No. 32 in the name of the noble Lord, Lord Campbell of Alloway, seeks to safeguard the position of soldiers in combat. It would mean that a serviceman who opens fire during armed combat or peacekeeping is not guilty of unlawful killing unless he intended not to comply with an order or rule of engagement. This defence is to apply where the serviceman has acted mistakenly, but in good faith. I understand the intention, but orders and rules of engagement simply do not cover every situation in which a serviceman might open fire. I have tried to explain why rules of engagement should not be drafted to tell each soldier exactly what the law requires of him in every possible situation. To take a simple example, rules of engagement do not say, ““Do kill a prisoner””; that is a matter for training. So I return to the principle: do noble Lords want rules of engagement to be legal documents or operational documents? They cannot be both. I turn to Amendment No. 33. This would give all rules of engagement the force of law. It is a pity that the noble Lord, Lord Kingsland, was not able to attend the briefing on 23 October because we went into some detail on this point. As we looked at the detail of rules of engagement, it was clear how it would be inappropriate to try to give them statutory force. As I have said, they have an operational purpose and they vary between operations. The amendment would mean that the law would change both between and during operations; that is, changing as swiftly as the operational situation changes. It would create a position of legal encirclement of our Armed Forces in a way which I am sure the noble Lord does not intend.