Select Committee on Defence Minutes of Evidence

Annex A

REGIONAL LIAISON

  Outlined below are examples of attendance at liaison between the MoD regional organisation and the appropriate civil authorities. Standard military representation at meetings includes representatives from the regional brigades (normally including the Brigade Commander), Naval and RAF regional representatives, communications expertise and representatives from HQ LAND.

Ser (a)	Brigade and Activity (b)	Non Military Invitees (c)	Attended (d)
1	145 (Home Counties) Brigade
	JSCG—13 Dec 01	Thames Valley Police Hampshire Police Oxfordshire EPO Hampshire EPO	X X X X
2	2 (South East) Brigade
	a.Regular liaison at desk level	All appropriate organisations
	b.Regional study day—25 Oct 00	Police Fire Brigade Ambulance Service Coastguard Channel Tunnel Security	X X X X X
3	49 (Eastern) Brigade
	Regular and ongoing liaison at all levels including: a.38 liaison meetings in the last six months with civil authorities	Covering the appropriate civil authorities in the 12 counties contained within the Bde area
	b.Six liaison meetings with the Government Offices of the Regions in the Bde area
4	43 (Wessex) Brigade
	a.JSCG—8 Nov 00	Wiltshire Police Avon and Somerset Police Devon and Cornwall Police Dorset Police Gloucestershire Police	X X X X X
5	2nd Division (Covering Scotland)
	a.JSCG—23 Nov 00	Scottish Executive (EPO) Grampian Police Lothian and Borders Police Strathclyde Police SPIO Scotland	X X (Chief Constable) X X X
	b.JSCG Working Group—16 Mar 01	Grampian Police Scottish Executive	X Apologies
	c.JSCG—22 Nov 01	Scottish Executive Grampian Police Dumfries and Galloway Police SPIO Scotland	X (x2) X (Chief Constable) X (Chief Constable) X
	d.JSCG—11 Apr 02	Scottish Executive Grampian Police Lothian and Borders Police Strathclyde Police	TBC
6	15 (North East) Brigade
	a.Regional Study Day—20-21 Mar 01	—Regional Director of Government Office Region North East —Regional Director of Government Office Region Yorkshire and Humberside —Northumbria Fire Bde —EPO Northumbria —EPO Northumbria Ambulance Service —Emergency Planning Officer BT —Regional Director MAFF —EPO Northumbrian Water —Chief Fire Officer Tyne and Wear —EPO Tyne and Wear —Coastguard —Port of Sunderland —Port of Tyne —Newcastle Airport —Cleveland Fire Bde —EPO Cleveland —Tees Ambulance —Durham and Darlington Fire Bde —NHS Northern Region —North Yorks Fire Bde —EPO North Yorks —EPO York —Tees, East and N Yorks Ambulance Service —W Yorks Fire Bde —W Yorks Fire and Civil Defence Authority —West Yorks Ambulance Service —Environment Agency —Yorkshire Water —South Yorks Fire Bde —Humber EPO —North Humberside Harbourmaster —Northumbria Police —Cleveland Police —Durham Police —North Yorks Police —West Yorks Police —South Yorks Police —Humberside Police —Humberside Fire Bde	All represented
7	42 (North West) Brigade
		2 x Assistant Chief Constable Ops and 6 x Emergency Planning Officers 6 x County Emergency Planning Officers
8	143 (West Midlands) Brigade
	Regular liaison at desk level
9	160 (Wales) Brigade
	Regular liaison at desk level
10	London District
	Regular liaison at desk level
11	107 (Ulster) Brigade
	Comparatively limited activity due to particular circumstances within area and the existence of HQNI

Q529: The committee asked about consideration of methods, other than the use of Tornado aircraft, against the threat from rogue aircraft.

  1.  Clearly, a wide range of responses are necessary to the threat from rogue aircraft, and the impact of any attack. The government is not wholly dependent upon RAF Tornados shooting down a suspect aircraft. Consequently, the MoD retains an open mind, and would not hesitate to take any effective method to destroy a rogue aircraft. But the use of QRA(I) aircraft remains the most effective means of destroying a civil airliner that prove necessary.

  2.  Specific attention has also been paid to the use of RAF and Army Ground Based Air Defence (GBAD). These are ***

  3.  GBAD assets include High Velocity Missiles and the Rapier Surface to Air Missile system. Royal Navy air defence ships carry surface to air missiles (Sea Dart) and many ships are equipped with Sea Wolf point defence missiles and Phalanx close in weapons systems. The latter are designed to defend the vessel itself. They render safe missiles aimed at the vessel, by firing numerous high velocity rounds designed to render the missile ineffective when it hits the vessel.

  4.  Ground and sea based Air Defence systems are, in the main, optimised to provide point defence of high value assets or self-defence of ships. They operate as part of a wider, layered Air Defence system, consisting of a centralised command and control structure fed by ground, air and sea borne early warning sensors and fighter aircraft. GBAD forms the final backstop against air attack. The positioning of the GBAD systems needs to be related to the other airspace control measures in place and the size and nature of the site to be defended against the assessed threat.

  5.  UK GBAD and ship Air Defence systems, with the exception of Sea Dart, operate at very short ranges. *** All surface-based missile systems have a large probable ground impact area when launched and any technical failure after launch, or a failure of the missile to engage the aircraft, would result in the missile landing somewhere with this impact area. This would pose some risk to persons and property within this large danger area.

  6.  In peacetime, hostile intent must be positively and unambiguously determined. ***

  7.  To operate successfully in this environment, ground and sea based Air Defence systems require an Air Exclusion Zone (AEZ) to be created around the vulnerable point that is to be defended. The AEZ parameters must be calculated to allow for the time taken for the decision cycle to be completed and must take into account where engagement rests.

***

  9.  In military operations air exclusion zones are designed to lead to the destruction of any aircraft entering the zone. In a high intensity conventional battle space the systems are effective where: collateral damage is of limited importance, airspace management is extremely tightly controlled, and aircraft respond to a military automated Interrogation Friend or Foe (IFF) system. In such circumstances, unidentified aircraft entering the AEZ are deemed to be exhibiting hostile intent, and engaged.

***

***

***

Q492: The Committee asked for information on lessons learned by the MoD from Exercise Trump Card, and action taken on these lessons.

  The key lessons identified by the MoD (not in priority order) were:

***

Q531: The Committee asked for information on the legal issues surrounding the shooting down of civilian aircraft.

GENERAL

  The legal basis for the use of force against a rogue civilian aircraft in the case of an imminent attack within the United Kingdom is:

—  in relation to domestic criminal law, section 3 of the Criminal Law Act 1967 (which permits reasonable force in the prevention of crime) and the general right to act in self-defence or defence of others;

—  in relation to international law (ie to the extent that it may be necessary to use force against aircraft of another State) the inherent right of self-defence recognised under Article 51 of the UN Charter.

Specific

  The use of lethal force is justified in English law when used in self defence, defence of others, or in the prevention of crime where there is an imminent threat to life and the force used is reasonable (ie necessary and proportionate), having regard to all of the circumstances.

  "The test to be applied is that the act will be necessary and proportionate if:

(1)  the act is needed to avoid inevitable and irreparable evil;

(2)  no more should be done that is reasonably necessary for the purpose to be achieved; and

(3)  the evil inflicted must not be disproportionate to the evil avoided."

  For these purposes, a "rogue civilian aircraft" is a civilian aircraft, in flight, which has been hijacked and which has been declared "hostile".

  The use of lethal force against a rogue civilian aircraft will only be justified where it has been declared hostile.

  A rogue civilian aircraft may be declared hostile where hostile intent is established. For these purposes, hostile intent can be expressed as a demonstration of an intention imminently to use the aircraft as a weapon and in a manner that will lead to a loss of life.

PROCEDURES

  Procedures need to focus on the determination of HOSTILE INTENT using all available intelligence, surveillance and weapons assets to achieve interception, interrogation and, if necessary, intervention. At every stage during the process, there must be a continuing review of the situation in order to confirm that the criteria leading to declaration of HOSTILE continue to be valid.

CHARACTERISTICS OF POTENTIAL ROGUE CIVIL AIRCRAFT

  Recognition of a potential rogue civilian aircraft will be ascertained through collation of information from a number of sources. Where strategic intelligence suggests a heightened state of alert, it is likely that the indicators of a potential rogue civilian aircraft will be noticed more quickly. The following are examples of possible indicators:

***

RECOGNITION

  A potential rogue civilian aircraft must be identified by ***.

  *** . Efforts to obtain visual confirmation of identity (by operator, aircraft type and registration number) will be undertaken as soon as possible following initial indication of potential rogue status. This will be achieved by the use of Quick Response Aircraft (QRA) ordered to intercept, identify and shadow.

INTERCEPTION.

  Where an aircraft acts in such a manner as to indicate hijack or HOSTILE INTENT, that aircraft will be intercepted to confirm visually the identity and attempt to establish the intent of the rogue civilian aircraft.

IDENTIFICATION AND SHADOWING.

  ***

INTERVENTION

  ***

  If the pilot of the intercepted aircraft refuses to comply with orders to turn away or land, the pilot of the fighter aircraft will *** may then authorise the use of a knife-edge manoeuvre to show the pilot of the intercepted aircraft that the intercepting fighter aircraft is armed. If this fails to elicit a response, *** may order a warning burst of gunfire (any warning burst is to be fired from such a position so as to be immediately recognised by the intercepted pilot as a warning to reinforce the order to land, and not an attack). During interception and intervention, the fighter aircraft crew will report any manoeuvres by the intercepted aircraft, in particular those, which could be construed as aggressive or evasive.

The Decision to use force

  The decision to use force will be relevant when a rogue aircraft has been declared hostile on the basis that there is a demonstration of hostile intent. A decision will have to be made as to whether the use of force is reasonable ie necessary and proportionate having regard to all of the circumstances.

THE NECESSITY FOR THE USE OF FORCE

  The use of force against a rogue civilian aircraft must be necessary. The threat to life must be imminent so as to create an immediate necessity to use force to remove the threat, and there must be no sensible or reasonable alternative to the use of force in order to avert the threat. Whether the use of force will be necessary at any given time cannot be determined in the abstract. Circumstances which might be relevant to the issue of the immediacy of the necessity to use force will include:

—  Location, height, speed and tract of the aircraft, including, where known, the potential remaining duration of flight and the range of the aircraft.

—  Proximity or otherwise to known or suspected "target" area, taking accont of the possibility that the material circumstances might cast doubt on the veracity of any expressions relating to intended targets.

—  Likelihood or otherwise of intervening acts occurring which would otherwise avert the threat to life (such as evacuation of target area or the availability of alternative critical infrastructure systems to replace those which if damaged would create a direct threat to life).

—  Likelihood or otherwise of a belated response from the rogue aircraft indicating an intention to comply with diversion instructions or otherwise that hostile intent will be negated.

PROPORTIONALITY

  The degree of force used must be proportional, in other words the minimum that is justifiable to achieve the end in view.

  In circumstances where a rogue civilian aircraft carries only hijackers and, if brought down would crash without further loss of human life, the application of the principles of proportionality will be uncomplicated. Much more difficult, however, is the use of force against a rogue civilian aircraft which will directly threaten the lives of passengers and crew on board that aircraft who are innocent of any crime and who are being held against their will. Further, if a downed aircraft is likely to fall in a location where there is a risk of causing further loss of life on the ground, the application of the principle becomes significantly more complicated.

  A very difficult question arises as to whether it would be proportionate, or otherwise justifiable, to endanger the lives of one or more groups of innocent people to save the lives of another group. Causing the death of passengers and crew aboard an aircraft, or those on the ground, by shooting down an aircraft would potentially amount to an unlawful act, in contravention to their right to life in the same way as the crash intended by the hijackers will infringe the rights of those who die in the "target" area. It is the need to find the balance between the rights of these individuals, which creates the greatest difficulty.

  If the following exceptional circumstances can be established, the use of force against a rogue civilian aircraft and the consequent risks to innocent lives could be considered proportionate;

—  that it is impossible to preserve the lives of those on the ground without bringing about the death of innocent persons on board the aircraft;

—  that continued existence of the aircraft will inevitably bring about the death of those innocent people on board in a very short time, and;

—  having regard to all of the circumstances, the loss of life which will result from the shooting down of the aircraft is not disproportionate to the consequences which are expected from not doing so.

  A part of the consideration of the overall circumstances will include;

***

  The extent to which the use of force is proportionate depends on the particular circumstances prevailing at the time that force is used. The need to balance the competing factors, interests and considerations in relation to the loss of life, which can be expected from a particular course of action, cannot be met by abstract consideration or by applying a mathematical or scientific formula to a particular set of circumstances.

  The law requires that for the use of force to be proportionate, it must be strictly limited by the necessity for action, based on the facts as they are known or honestly and reasonably believed to be, and kept within it.

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Prepared 24 July 2002