In a decision published on 2 January 2018, the Upper Tribunal has decided that the ‘security bodies’ exemption under the Freedom of Information Act (FOIA) should not have been applied in a blanket fashion to exempt the legal advice that formed the basis of the lethal drone strike that killed two British citizens, Reyaad Khan and Ruhul Amin, in August 2015. The Tribunal refused to order disclosure of the advice, but not before making a significant ruling narrowing the parameters of the ‘security bodies’ exemption and criticising the Information Commissioner’s handling of such cases.
This landmark case brought by Rights Watch (UK) is the first time the courts have considered whether information about a government policy decision (including legal advice taken in reaching that decision), which underpins operational decisions involving security bodies, can and should be “disaggregated” from information containing intelligence or operational decisions in applying section 23 of FOIA.
Section 23 FOIA exempts information relating to the security services. It is an absolute exemption – once it is engaged, no public interest test applies. The Upper Tribunal accepted that such “disaggregation” is appropriate, and in doing so adopted a significantly narrower interpretation of section 23 of the FOIA than that advocated by the Government and applied in previous cases.
The Government argued that section 23 should be interpreted widely to include, for example, information that passed through the hands of security bodies. The Upper Tribunal rejected this approach and accepted Rights Watch (UK)’s argument that the advice should be “disaggregated” and considered under other exemptions provided for by the Act.
The implication is that parts of the legal advice, such as the Government’s interpretation of international law, fell outside the absolute security bodies exemption, and were therefore subject to a public interest test.
The Upper Tribunal also strongly rebuked the Government and Information Commissioner’s Office – the independent body charged with reviewing complaints against the Government’s handling of FOIA requests – for their approach in the case.
Notwithstanding the fact that there were initially discrepancies between the Attorney General and Cabinet Office’s accounts of whether the advice was covered in its entirety or in part by section 23, the Information Commissioner did not examine the material herself. Rather, she relied on an assurance from a “senior official” in the Cabinet Office that the advice as a whole fell under section 23. The Upper Tribunal decided that this “fell well short of what was required under FOIA” and allowing the Government to be the decision-maker in their own challenge was “unfair”.
Yasmine Ahmed, Executive Director or Rights Watch (UK) commented:
“This is a significant push-back against the Government’s expansive claims of secrecy, that would have allowed it to claim absolute secrecy and suppress information that had merely passed through the hands of the security services, corroding the public’s right to information. The Government are on notice: referencing the security services or them having sight of information does not hand public bodies a blank cheque to veto scrutiny of their actions, and they cannot do so and expect the Information Commissioner, courts and public to acquiesce.”
“This decision shed light on substantial flaws in the Government and Information Commissioner’s approach and must prompt significant policy change. By allowing the Government to be judge in its own case on an issue this consequential, the Information Commissioner acted in dereliction of her duties as an independent overseer, rubber stamping the Government’s conclusions.”
However, disappointingly the Upper Tribunal stopped short of ordering the release of the legal advice. Although they acknowledged the strong public interest in a full and informed discussion of the legality of the targeted killing, and that this “new departure” in Government policy raised “significant human rights issues that demanded detailed scrutiny by Parliament”, the Court decided that the public interest in maintaining legal privilege and protecting the government from legal action weighed in favour of withholding the legal advice.
The Upper Tribunal relied on the May 2016 report of the Joint Committee on Human Rights to support its conclusion that the lawfulness of the Government’s position could be scrutinised without disclosing the legal advice. However, the Joint Committee on Human Rights and Intelligence Security Committee (ISC), both of which instigated inquiries in the wake of the strike, expressed serious concerns about the government’s failure to be transparent during the course of their inquiries.
The JCHR were “disappointed by the Government’s unhelpfulness” in refusing to provide them with a detailed memorandum on their legal position. JCHR chair Harriet Harman MP, noted that since the inquiry concerned “a matter of the utmost seriousness, to fail to be accountable to Parliament is inexcusable”. ISC Chair, Dominic Grieve MP, urged the Government to be “more transparent” given that they could not “be sure – nor offer an assurance to Parliament or the public – that we have indeed been given the full facts surrounding the authorisation process for the lethal strike against Reyaad Khan”.
Yasmine Ahmed, Executive Director of Rights Watch (UK), commented:
“It is disappointing that the Court did not order the release of the legal advice that formed the basis of the United Kingdom’s first targeted killing in a country where it was not involved in a war – leaving us to piece together the Government’s legal position from the patchwork of statements that remain fraught with ambiguity and inconsistencies.”
“Genuine transparency, rather than selective and self-serving disclosures, is a necessary pre-requisite for informed debate about where and when it is lawful for our Government to claim authority to kill abroad: a debate that has acquired fresh urgency as the Trump Administration further unmoors the United States from its international legal obligations, putting the United Kingdom at risk of complicity in Trump’s ramped up drone war.”
Daniel Carey, a solicitor at the law firm Deighton Pierce Glynn, which is representing Rights Watch (UK), commented:
“Rights Watch (UK)’s challenge has been vindicated by these significant rulings on the legal and procedural approach to security services information under the Freedom of Information Act. Although it is disappointing that the Tribunal has glossed over the inconsistencies in the government’s explanations of the legal basis for this marked shift in policy and the highly significant questions which remain unanswered.”
Notes to Editors:
- For more information contact Yasmine Ahmed at email@example.com or on +447531405665
- (1) Corderoy & (2) Ahmed v (1) The Information Commissioner, (2) The Attorney General’s Office & (3) The Cabinet Office:  UKUT 495 (AAC) was decided on 14 December 2017 and published on 2 January 2018.
- On 7 September 2015 the then Prime Minister announced the targeted killing of Reyaad Khan, noting that the Attorney General had been consulted and found there was “clear there would be a clear legal basis for action in international law.” The following day Rights Watch (UK) submitted Freedom of Information Requests to the Attorney General and Cabinet Offices, asking for the advice to be published. The Attorney General and Cabinet Offices refused to disclose the advice, a decision which was upheld by the Information Commissioner.
- Rights Watch (UK) launched an appeal of the Information Commissioner’s decision in October 2016. The appeal was leap-frogged up to the Upper Tribunal, and was heard in July 2017.
- The parts of the legal advice that were not covered by section 23 were covered by sections 35(1)(c) and 42 of FOIA. These are qualified exemptions that protect legal advice from Law Officers and legal privilege respectively.
- In October, it was reported that the Trump Administration adopted its anticipated new approach to the deployment of armed drones – the Principles, Standards, and Procedures (PSP). The PSP is understood to repeal and replace the Obama Administration’s 2013 Presidential Policy Guidance (PPG). The PSP loosened many of the standards set out in the PPG, and puts the UK and other states assisting and cooperating with the US at risk of complicity in the US drone programme.