Fifteen months after hearing our appeal, an Information Tribunal handed down its decision this week rejecting our arguments that basic details about the deployment of armed Reaper drones outside of Operation Shader (Iraq/Syria) by the UK needed to be released to enable public and parliamentary oversight over such deployments.
Both Clive Lewis MP and Baroness Vivienne Stern, Vice-Chair of the All Party Parliamentary Group (APPG) on Drones and Modern Conflict had submitted statements to the Tribunal supporting our appeal. Clive Lewis argued that the refusal to answer these questions about the deployment of Reaper is “a serious backward step in terms of transparency and accountability.” Baroness Stern stated:
“Despite repeated attempts by myself and colleagues to attain even the most basic information about the UK’s drone deployments, policy, and commitments, Parliament has not been provided with the accurate and timely information needed to meaningfully carry out its constitutional scrutiny role. Whilst certain details must be kept secret in order to ensure operational and national security, the current trend of withholding information about the use of drones purely because it is seen as an “intelligence” asset, as well as withholding vital information on the UK’s growing military capabilities and commitments is deeply concerning and unjustified.”
While insisting that it was neither confirming nor denying the deployment, the MoD argued against the release of the information on three broad grounds . As the Decision Notice states:
“the MOD’s key concern about the release of the requested information was that it could lead an adversary to infer the absence or presence of UK personnel. In his [The MoD’s witness’] opinion were the locations to be released or inferred from a combination of requested data and already published material (the “mosaic effect”), there would be an elevated risk to any potential personnel in that location and an increased risk of hostile acts against them.”
A second concern was
“there would be an increased risk to any nation hosting the Reaper operations as an adversary may target a hostile act at the host nation rather than the UK which may be a more difficult target. Thereby undermining the UK’s relationship with that nation and undermining military operations conducted from that location.”
Finally, and most concerning from a scrutiny and oversight point of view the MoD argued (again quoting Decision Notice)
“The effectiveness of operations conducted using Reaper outside Operation Shader in future depend, in part, on a greater degree of ambiguity as to the employment of Reaper in order to be successful. It is important to retain a degree of ambiguity regarding the full extent of Reaper operations now in order to maintain this flexibility in the future. “
Drone Wars argued strongly that the information requested – a single figure of the number of sorties undertaken outside of Operation Shader and their broad, geographic location (i.e. ‘The Middle East’) – was not capable of causing the prejudice alleged. We also pointed out to the Tribunal that the MoD has previously released the number of sorties undertaken outside of Operation Shader (In response to our questions about the targeted killing of Naweed Hussain in 2018) without any of the prejudice or harm suggested, but that seems to have been ignored by the tribunal.
The Decision Notice quotes approvingly and extensively from the MoD’s witness statement and arguments. The Tribunal was also clear that it paid attention to the decision in the case of All Party Parliamentary Group on Extraordinary Rendition (APPGER) v Information Commissioner and The Ministry of Defence where it was held that “appropriate weight should be attached to evidence from the executive branch of government about the prejudice likely to be caused by disclosure in particular circumstances. This is because the executive are likely to be better informed and have more experience in assessing the consequences of disclosure.”
In addition, the Tribunal seems to have fully accepted the MoD’s suggestion that there was little public interest in releasing the information requested as it was limited information and it was not actually capable of answering questions that campaigners and parliamentarians have raised with regard to the legality and ethics of Reaper operations.
In court, Drone Wars argued that this was sleight of hand:
“To suggest that because a particular piece of information cannot in and of itself answer broader questions does not mean there is not great public interest here in that it allows parliamentary scrutiny to take place by acknowledging the fact of the deployment.
The Tribunal however stated:
“We have concluded that disclosure of the information would not educate the public or build trust in the way suggested, simply through the provision of the bare data requested to the extent required to outweigh the public interest in the maintenance of the exemption given our conclusion about the level of risk that would be occasioned by the disclosure of the information… The disclosure of the number of sorties and location will not, of themselves, advance an assessment of legality or impact assessment as the information will not tell the public the nature of the sortie(s) if any, or anything about the use to which the Reaper was employed.”
The decision is extremely disappointing. In her important submission, Baroness Stern, Co-Chair of the All Parliamentary Party group on drones and modern conflict argued that “Transparency is instrumental for Parliament to carry out its essential role of scrutinise the work of the government.” She went on:
“Not only does transparency enable Parliament to scrutinise government action, but it allows the general population to observe action government takes in their name, and to scrutinise and hold to account said action. As such, transparency contributes to good governance, and public legitimacy and confidence in the government.”
It wasn’t very long ago that the Chilcot inquiry made this very point too. Without proper outside scrutiny of decisions, it’s all too easy to fall into group think. Such challenge and scrutiny simply cannot happen without at least some basic transparency.