In what circumstances can the UK Government target and kill a British citizen abroad? Can the Government withhold its legal basis for doing so by invoking a blanket claim to secrecy with reference to the involvement of the security services? Has the UK been inching towards the US position on the use of force, while denying the public the opportunity to scrutinise it?
These questions lie at the heart of Rights Watch (UK)’s challenge to the Government’s refusal to disclose the legal advice that formed the basis of the targeted killing of Reyaad Khan, heard by the Upper Tribunal in July. This lethal drone strike, announced to Parliament by then Prime Minister David Cameron in September 2015, marked, he said, a ‘new departure’. In a highly unusual move, he explicitly relied on the Attorney General’s advice to assure parliament it was ‘entirely lawful’.
While the existence of the advice, and its headings and conclusions, were revealed by the Prime Minister to legitimise the strike, the Government then refused to disclose its contents, either redacted or summarised, citing s. 23 of the Freedom of Information Act (FOIA). This provision exempts information ‘supplied by, or relating to’ security bodies. It is an absolute exemption: where it applies, it cannot be overridden, even if, on balance, the public interest is served by disclosure.
We challenged this refusal on the grounds that the decision maker must disaggregate the advice and, adopting a purposive approach to s.23, argued that whilst parts of the advice will legitimately fall under the provision, other parts, such as the analysis of applicable legal principles, will have no revelatory quality about the security services and should fall outside its ambit. These parts are merely covered by the qualified exemptions that are engaged, (e.g s.42, which captures legally privileged information) and subject to a public interest balancing. This approach avoids extravagant application of s.23 by tying its application to its underlying aim: maintaining the veil of secrecy surrounding activities of the security bodies.
The Government responded that the advice in question cannot be disaggregated, and our argument would defeat Parliament’s objective of ensuring FOIA is not a means of obtaining any security body information. But their approach produces outcomes the legislature cannot have intended. For example, the Government accepted, on their interpretation, where information passes through the hands of a security body, it would be absolutely exempt. Yet this would license public bodies to funnel any information they sought to keep secret through a security body.
The Government also sought to downplay the public interest in releasing the advice. The strike – which prompted two Parliamentary Committees to launch inquiries – was uncontroversial, they claimed, just another strike within armed conflict, a ‘new departure’ only in the sense that they departed from the newly established constitutional convention to go to parliament before using military force.
This does not add up with what the Prime Minister told Parliament. In response to the question of whether this is the first British drone strike ‘in a country where we are not involved in a war?’ he replied, ‘yes. Of course, Britain has used remotely piloted aircraft in Iraq and Afghanistan, but this is a new departure’. At the very least, he strongly implied that this strike was carried out outside of armed conflict, rather than within the on-going conflict in Syria. The fact that the Government committed to returning to Parliament before joining the conflict in Syria intensifies, rather than assuages, the compelling public interest in seeing what the legal advice said, and how it was represented to Parliament (is the position the Government now adopts a retrospective rationalisation, or was it contained in the advice but not made clear by the Prime Minister at the time?).
In the absence of clarity as to the extent of what the legal advice green lights, statements about future strikes also implicate the public interest in disclosure. Particularly concerning are statements that the UK is prepared to use force outside of armed conflict, and would likely look to the law of armed conflict (LOAC) as an ‘important source’, intimating they intend to expand the scope of the battlefield and dilute right to life protections. No explanation has been offered as to how this is reconciled with established threshold tests for the application of LOAC, nor what prompted a departure from the Government’s stated position to the Human Rights Council in 2014, that the use of drones outside of armed conflict must comply with human rights law.
Finally, and independently of whether the strike was carried out within armed conflict, pressing questions remain as regards the legality of the strike under the law of self-defence. As colleagues have discussed elsewhere, statements in the wake of the strike indicate the UK may have redefined the term ‘imminent armed attack’, which triggers the right to use defensive force at international law, to capture general threats rather than specific imminent attacks. This erodes a critical constraint on the unilateral use of force, and risks unleashing a right of pre-emptive self-defence, all but in name.
Piecing together the UK’s position from the jigsaw of selective disclosures and ambiguous statements suggests a move towards an approach the US has long endorsed, but successive UK Governments resisted. The need for informed public debate about the lawfulness and desirability of this shift could not be more acute.