Drone Wars appeared before a two-day information tribunal this week seeking to overturn the decision of the Ministry of Defence (MoD) to end the release of statistical information on the use of Reaper drones and other armed aircraft on military operations. This information has been a crucial way for the public and parliament to have oversight of UK military action and without the data, it will be much hard to hold the UK to account.
The MoD has been responding to our Freedom of Information Act (FOIA) requests for statistical information since 2010. In January 2023, the MoD abruptly ended the practice arguing that the information could not be provided due to exemptions provided under Section 23 (Security bodies) or Section 24 (National Security), and Section 26 (Defence) of the Act.
Section 23 and Section 24 are used as ‘alternatives’ to disguise which exemption is being relied upon, that is whether the information comes from or relates to Special Forces, the intelligence service or similar bodies, or whether it is needed to protect ‘national security’.
The hearing took place partly in open session with Drone Wars present, but it also went into closed session when we were excluded, in order to hear evidence in secret.
The MoD provided a witness statement from Group Captain Redican, Deputy Assistant Chief of Staff for Joint Air Force Component and someone with direct experience of Operation Shader in response to our appeal. Although the full witness statement contains 50 numbered paragraphs, only 15 were visible to us, the rest was redacted.
Documents also disclosed to us in the run up to the Tribunal revealed that at an earlier stage of our appeal, the Information Commissioner had asked the MoD to provide it with evidence that disclosure of the statistics to Drone Wars had caused harm or prejudice to the UK. The MoD wrote to the Information Commissioner:
“The information previously released cannot be directly linked to harm to UK forces in its current operating environment (predominantly Operation Shader) however it has revealed capability details for a system that is capable of use on global operations where the threat environment may be significantly different against a more sophisticated adversary.”
In his witness statement, Gp. Capt Redican stated:
“I am aware that the MoD has previously provided responses to similar requests issued by Mr Cole. The MoD now seeks to withhold information which it was previously content to disclose. This is due to the changing national and security context, detailed further below.” [note the following four paragraphs were redacted]
Asked to explain what he meant by the ‘changing national and security context’, Redican explained that following Russia’s invasion of Ukraine, the UK was now preparing for ‘State on State’ warfare rather than use of armed force against non-state groups. At the same time, he went on, the situation in the Middle East had changed since the beginning of Operation Shader, with Iran – which had previously engaged in the same task of opposing ISIS – but now, “was a major actor in that theatre, and their actions are contrary to British interests.”
Drone Wars strongly argued that the statistical data that we sought was simply not capable of providing insight into ‘techniques, tactics and procedures’ at the level of detail which could cause prejudice to the UK as claimed, but instead gave a broad overview which enabled public oversight.
MoD ‘drawing a line in the sand’
Redican argued that it was not about “the specifics of information” but that “a line in the sand had to be drawn somewhere”. He went on “at some point we have to set a new precedent. We are going to have to begin to protect our capabilities more and more.”
Drone Wars argued that other states, particularly Russia, Syria and Iran which operate in the same theatre would already have good understanding of the capability of the aircraft that the UK has deployed and would in fact gain nothing from the quarterly statistical data requested. Redican demurred from answering other than to say that he would add to his answer in the closed sessions. Counsel for the information Commissioner picked up on this point and asked Gp Capt Redican “whether other states operating in the same theatre have the capability to assess other states aircraft?” Gp Capt Redican replied very simply, ‘Yes’.
Gp Capt Redican also argued that due to the fact that there were now fewer UK sorties and air strikes than at the height of Operation Shader, more information could be gained from the released data due to “less background noise”. Drone Wars again refuted this, arguing that sorties were allocated by the Combined Air Operations Centre (CAOC) in Qatar. If UK aircraft were unavailable for sorties – perhaps due, for example to Reaper air crews being retrained to operate Protector rather than Reaper – other states would be allocated those sorties – there would not be a drop in the overall number of sorties flown.
Both Drone Wars and Counsel for the Information Commissioner drew the attention of Gp Capt Redican to the narrative reports published by the MoD (often much later) when strikes occurred. These contained far more detail than the requested statistics and these details were still being published. Why was he opposed to the release of the statistics to Drone Wars if the MoD was happy to continue to provide the level of detail contained in the narrative strike reports? Redican was clearly opposed to the continuing release of the strike reports and said that was a matter of internal debate.
Asked whether he accepted that there should be public oversight of military operations, Gp Capt Redican accepted that there should, but that it should take place behind closed doors with MPs as it is done in the US.
Final submissions
On the second day of the Tribunal, Drone Wars made submissions to the tribunal about why the information should continue to be released. These included:
- Given that numerous military officers and MoD officials over years have assessed our quarterly requests and have happily released the information previously; given that the information requested is broad statistical data not capable of giving the level of detailed insight into ‘techniques, tactics or procedures’, or in fact prejudicing the capability, effectiveness or security of relevant forces’; and given that there is a lack of clarity within the public authority itself about what information should be released we submit the information should continue to be disclosed.
- Our argument is that the risk of harm is non-existent but given that the public authority has raised the possibility of risk and the fact that previous Tribunals have accepted that in this area “appropriate respect should be given to the public authorities view”, our argument is that there is compelling public interest in continuing to disclose the information.
- We are not asking for new information which previously has not been disclosed, but rather for information which has been released for many years and which the MoD accepts has not caused any prejudice . The MoD’s decision to end disclose of these details is a serious backward step in transparency and prohibits proper public oversight as well as undermining public understanding of military operations.
- Without the basic transparency of this broad statistical information it is simple not possible for the public to have a reasonable overview of ongoing operations.
- Enabling proper and appropriate public scrutiny of government operations is a vital part of democracy and a fundamental reason for the existence of the Freedom of Information Act. As much information about ongoing military operations needs to be exempt, it is even more incumbent on public authorities to release information about such operations which is not capable of leading to prejudice, such as the statistical information that as at the heart of this appeal.
- Public understanding and broad oversight of lethal military operations is a vital part of the democratic process, indeed it is a vital characteristic of a democracy. While the MoD argues that the changing political and security context means that previously accepted ways of operating needs to be curtailed, we submit that it is critical that we don’t jettison such democratic processes and this, in part, means disclosing the information requested.
The Tribunal closed following submissions from the MoD and the Information Commissioner. The Tribunal promised to produce a decision as soon as possible, but this will likely not be published for some time.