Disclosure of the UK’s legal advice on drone killing: appeal heard by Upper Tribunal

On 20-21 July 2017 the Upper Tribunal will hear an appeal by Rights Watch (UK) against the refusals of the Attorney General and Cabinet Office – maintained by the Information Commissioner – to disclose the Attorney General’s legal advice that authorised the drone strike on 21 August 2015 that killed two British nationals in Syria.

Deighton Pierce Glynn are representing Rights Watch (UK) (“RWUK”) pro-bono in their appeal under the Freedom of Information Act 2000 (“FOIA”) seeking disclosure of the Attorney General’s legal advice on targeted killing by drone.  RWUK’s concern is that the drone strike marked a significant shift in the UK’s position regarding the lawfulness of targeted killings overseas outside zones of armed conflict.  The drone strike bore strong similarities to the controversial US drone programme that is seen by many as operating outside accepted standards of international law.  As such, many saw the UK’s actions as weakening the international legal order in this area and sending a signal to other states that they may do the same.  RWUK argue that in those circumstances, it is essential that the public be given a clear picture of the legal advice that authorised the drone strike.

Parliament’s Joint Committee on Human Rights (JCHR) and the Intelligence and Security Committee (ISC) both instigated inquiries in the wake of the strike, and expressed serious concerns about the government’s legal position. The JCHR described it as “confused and confusing” and requiring “urgent clarification”. Ultimately, it concluded that the Government “ducked the central question” about lethal drone strikes by failing to disclose what legal principles they had relied on.

Disclosure of the legal advice has been refused under FOIA on the basis that it contains information “supplied” by or that “relates to” the intelligence services.  RWUK argue that this information can be redacted (removed) and the remainder of the advice disclosed. The government also opposes disclosure on other bases in FOIA, but these exemptions are disapplied where the public interest in disclosure outweighs the interest in non-disclosure and RWUK argue that the public interest in disclosure here is overwhelming, given the controversial nature of the drone strike; the need to clarify current policy; and the conflicting public explanations that have been given by the government since the strike was carried out.

In view of the importance of the case, the First Tier Tribunal remitted it to the Upper Tribunal, who will hear the case on 20-21 July 2017.

Dan Carey of Deighton Pierce Glynn stated as follows:

“We are arguing that the presence of intelligence related material in the Attorney General’s advice should not prevent Rights Watch (UK) and the British public from knowing even the basic approach that was taken to key questions of international law governing the use of force on foreign territory. Redaction of the document is likely to be necessary, but we are asking the Tribunal to rule that outright refusal is not justified.”

RWUK are represented pro-bono by Deighton Pierce Glynn, Anya Proops QC (11KBW chambers) and Julianne Morrison (Monckton Chambers).

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