April 16, 2018UK Upper Tribunal Finalised Drones Complainant
The facts of the case
This landmark case brought by RSI (then Rights Watch (UK)) is the first time the UK courts 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 the Freedom of Information Act (“FOIA.”)
RSI challenged the Attorney General and Cabinet Offices’ refusal to disclose the legal advice which formed the basis of the UK’s first drone strike in Syria. The strike was the first time the UK had carried out a targeted killing in a country in which it was not at war. The Government has since made clear that it would not hesitate to carry out future targeted killings, including outside of armed conflict scenarios. Announcing the strike, the Prime Minister expressly relied on the above described legal advice to assure Parliament it was “entirely lawful.” However, the Government rejected RSI’s request under FOIA to disclose this advice. The Government argued that the advice was 'blanket exempt' from disclosure under section 23 of FOIA – an absolute exemption covering information relating to the security services.
RSI’s intervention in the case
RSI successfully argued that underlying sensitive intelligence, which fell squarely under the absolute section 23 exemption, could have and should have been “disaggregated” from parts of the advice that did not, such as the Attorney General’s interpretation of international legal principles, and considered under other exemptions provided for by FOIA which require a public interest test. RSI argued that parts of the advice, such as the Attorney General’s interpretation of international legal principles, must fall outside the scope of section 23. The purpose of the security services exemption is not to provide blanket protection of all information because it happened to be, for example, incidentally provided to security bodies. This would corrode the public’s right to information. Secondly, RSI submitted that the Information Commissioner’s Office – the independent body charged with reviewing the Government’s handling of FOIA requests – erred in treating a bare assurance from a “Senior Cabinet Official” as conclusive evidence that the advice was exempt under section 23, without examining the advice itself. This was a patently insufficient check on the Government and amounted to rubber-stamping the Government’s expansive secrecy claim.
The judgment in the case
This case represents the first time the Upper Tribunal has made a significant ruling narrowing the parameters of section 23 of FOIA. The Upper Tribunal 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.” Ultimately 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.
Nevertheless, the Upper Tribunal’s ruling reinforced many of arguments submitted by RSI pertaining to the centrality of the rule of law in international security. As argued in RSI’s evidence, any attempt to reinterpret international legal constraints to justify a new policy of targeting killing risked eroding the normative framework that crystallized in the wake of World War II. This framework conceived of the use of force as an exception, rather than the norm.
The Court also emphasised that the UK is obliged to be transparent about its use of force, and that transparency about the legal and policy basis for the use of force is essential for the rule of law, deterring abuse, enabling oversight, and establishing accountability for abuse. The Upper Tribunal did accept that the underlying sensitive intelligence, which fell squarely under the absolute exemption, can and should be disaggregated from parts of the advice that did not. The Upper Tribunal also agreed that the Information Commissioner's Office acted in dereliction of its duty in not viewing the advice itself. It decided that this “fell well short of what was required under FOIA” and in effect allowed the Government to be the decision-maker in its own challenge.
What does this mean for RSI’s work?
RWUK decided not to appeal the decision. However, it has developed a work stream to build on this case and develop the right to information under human rights law where FOIA is inadequate.
Given that the Upper Tribunal agreed that sensitive information can and should be disaggregated from parts of legal advice that is not sensitive, this may provide an entry point to re-balance the scales and allow civil society, journalists and the public to challenge excessive and expansive secrecy claims in the national security arena. The Government can no longer withhold information with a catch-all reference to security matters as justification.
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