Landmark case brought by EFAD-member Rights Watch (UK)

This press release was originally written by Rosalind Comyn and published here.

Upper Tribunal rejects the UK Government’s blanket national security claim to withhold targeted killing legal advice

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”.

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”.