Tuesday, 2 January 2018

Death by drone ~ Legal advice ~ Upper Tribunal decision on information requests

Rights Watch have highlighted a decision of the Upper Tribunal Administrative Appeal Chamber - Corderoy and Ahmed v The Information Commissioner, Attorney-General's Office and Cabinet Office [2017] UKUT 495 (AAC).  See the Rights Watch summary of the judgment - HERE.  The appeals to the Tribunal related to decisions of the Information Commissioner in response to Freedom of Information Act 2000 requests. 

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. 

The appellants had sought information concerning the killing by drone attack of Reyaad Khan and Rahul Amin in 2015.  This was the subject of blog posts: 8th September 2015 - View from the North - A killing in Syria;  11th September 2015 - Reyaad Khan - UK government letter to the UN;  15th September 2015 - Death by drone - Concerns and Questions and 12th January 2017 - Drones - Speech by the Attorney-General

The Upper Tribunal judgment sets out in a Schedule to the judgment the Report of the Joint Committee on Human Rights of the House of Lords and House of Commons published on 10 May 2016 which sought clarification of the government's position on the following legal questions:
  • its understanding of the meaning of the requirements of “armed attack” and“imminence” in the international law of self-defence
  • the grounds on which the Government considers the Law of War to apply to a use of lethal force outside armed conflict;·
  • its view as to whether Article 2 ECHR applies to a use of lethal force outside armed conflict, and if not why not;·
  • its understanding of the meaning of the requirements in Article 2 ECHR that the use of force be no more than absolutely necessary, and that there is a real and immediate threat of unlawful violence, in the context of the threat posed by ISIL/Da’esh; and·
  • its understanding of the legal basis on which the UK takes part in or contributes to the use of lethal force outside armed conflict by the US or any other country adopting the same or a similar view with regard to the use of lethal force.

Just Security - UK's drone report leaves unanswered questions -  11th May 2016

The government's response of October 2016 to the report is HERE

Use of Armed Drones by the USA:

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.

See also Truth Out.


  1. Comment placed on Twitter by Dr Aurel Sari - Senior Lecturer in Law at Exeter University - and reproduced here with his kind permission - "The Tribunal is right to conclude that "a properly informed public debate of the legal issues can be had without" disclosure of the legal advice. It really does not take rocket science to work out the Government's reasoning...whether one agrees or not.

    But the Tribunal is so right to imply that the Khan strike raised "significant human rights issues". This ignores the Court of Appeal in Al-Saadoon."