4The decision-making process
Introduction
4.1Another of the objectives of our inquiry was to clarify the decision-making process that precedes any use of lethal force in circumstances such as those on 21 August in Syria. In this chapter we have pieced together, from various sources, the Government’s own description of the decision-making process, before considering some of the arguments made to us in favour of greater transparency in that process. We compare the information provided about the decision-making process in the published US Policy and we identify some of the most significant questions about the UK process which remain unanswered at the end of our inquiry. We consider the implications for the decision-making process of the fact that the ECHR applies to decisions to use lethal force outside armed conflict, and we make some recommendations for the future.
The Government’s account of the process
4.2The Prime Minister summarised “the processes we followed” before the use of lethal force in Syria on 21 August 2015 in his statement to the House of Commons on 7 September:
“Our intelligence agencies identified the direct threat to the UK from this individual and informed me and other senior Ministers of that threat. At a meeting of the most senior members of the National Security Council, we agreed that should the right opportunity arise, military action should be taken. The Attorney General attended the meeting and confirmed that there was a legal basis for action. On that basis, the Defence Secretary authorised the operation. The strike was conducted according to specific military rules of engagement, which always comply with international law and the principles of proportionality and military necessity. The military assessed the target location and chose the optimum time to minimise the risk of civilian casualties.”160
4.3The Government’s Memorandum does not provide any further detail about the process, other than to add that “decisions concerning the use of force in self-defence are taken by the Prime Minister in consultation with other senior ministers and advisers.”161
4.4We also asked the Secretary of State for Defence a number of questions to try to understand better the decision-making process that precedes a lethal drone strike.
4.5During our visit to RAF Waddington we also learnt about the command and control chain and the detailed decision-making at the operational level.
4.6Authorisation of particular uses of force is given by the Defence Secretary, who also sets the framework of rules in which the operation takes place, such as the rules of engagement for particular missions, which may include directives about civilian casualties. Operational decision-making is delegated to service personnel, operating within the framework set by the Defence Secretary. This means that decisions which have to be taken at the very moment of action, such as whether the risk of civilian casualties if the strike goes ahead is proportionate to the military advantage to be gained from the strike, or whether to abort a strike because it has become clear at the very last minute that civilians or children are nearby, are taken by those in the very front line: those in the virtual cockpit who are actually operating the drone.
4.7Our inquiry has therefore established that, apart from Prime Ministerial, Attorney General and National Security Council involvement at the stage of in principle approval of target selection on the basis of intelligence, the decision-making process that precedes a use of lethal force abroad outside of armed conflict is, to all intents and purposes, identical to the process followed by conventional uses of lethal force in armed conflict, following well established procedures designed, in part at least, to ensure compliance with the Law of War.
Concerns about the transparency of the current process
4.8A number of witnesses argued in their evidence to us that there is currently insufficient transparency in the decision-making process that precedes a use of lethal force pursuant to the Government’s policy.
4.9In short, they argued that there needs to be greater transparency about the decision-making process in order for there to be public confidence that the process is robust, with sufficient challenge built into it, rigorous testing of intelligence, access to the requisite advice including legal advice, and assurance that decisions are taken at a level within Government which are commensurate with their importance.
The published US policy
4.10The published US policy that we referred to above,162 on the use of force in counterterrorism operations abroad outside areas of active hostilities, set out in Annex 4, contains information not only about the standards (both legal and policy) applied by the US Administration when deciding whether or not to use such lethal force, but also about the procedures that are followed when making such decisions. The document refers to “written policy standards and procedures that formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities.” The published policy sets out only certain “key elements” of those standards and procedures, to enable the American people to make informed judgments and hold the Executive Branch accountable. It outlines the decision-making process and indicates the sorts of analysis that inform the decision-making process:
“Decisions to capture or otherwise use force against individual terrorists outside the United States and areas of active hostilities are made at the most senior levels of the US Government, informed by departments and agencies with relevant expertise and institutional roles. Senior national security officials–including the deputies and heads of key departments and agencies–will consider proposals to make sure that our policy standards are met, and attorneys–including the senior lawyers of key departments and agencies–will review and determine the legality of proposals.
These decisions will be informed by a broad analysis of an intended target’s current and past role in plots threatening US persons; relevant intelligence information the individual could provide; and the potential impact of the operation on ongoing terrorism plotting, on the capabilities of terrorist organizations, on US foreign relations, and on US intelligence collection. Such analysis will inform consideration of whether the individual meets both the legal and policy standards for the operation.”163
4.11Also notable in the US policy is the express mention of congressional notification, and in particular the commitment that “appropriate Members of the Congress will be regularly provided with updates identifying any individuals against whom lethal force has been approved.”
Clarifications needed about the decision-making process
4.12As a result of the evidence we have received and what we learned on our visit to RAF Waddington, we have a better idea of the decision-making process but the picture is still far from complete. Some important questions about that process remain unanswered. How are targets identified? How is intelligence tested for reliability so that risks such as mistaken identity are minimised? Is some form of challenge built into the process for identifying targets? Is there a list of pre-authorised targets and what process is there for review of names on that list? At what points in the decision-making process is legal advice sought? How does the process balance potential harm to other people who are not the target of the attack? Does the process ensure that counter-terrorism operations are always planned and conducted so as to minimise the risk of loss of life of innocent bystanders, as they ought to be? We do not suggest that all of these questions about the decision-making process can necessarily be subjected to public examination without running the risk of harming national security. However, they are questions which, it seems to us, need to be asked about the decision-making process by some person or body who can provide independent scrutiny with access to the necessary intelligence. We consider the candidates for such a role in chapter 5.
4.13Here we consider some of the most significant questions about the process which in our view should be clarified by the Government in its response to our Report.
Is there a “kill list”?
4.14One of the questions we have considered is whether there is what the media have dubbed a “kill list”–that is, a list of pre-authorised targets in respect of whom ministerial authorisation has already been given for targeted killing because of the risk they pose to the UK.
4.15The Government did not answer directly the questions in our letter about whether there is such a list, nor did the Secretary of State answer the question in oral evidence, regarding it as “an intelligence matter”.164 Reyaad Khan’s MP, Kevin Brennan, has twice asked the Minister for Armed Services the same question directly in an oral question, but also has not received an answer. 165
4.16If, however, such a list exists, we think it would be desirable for a trusted independent body to scrutinise issues such as how the Government ensures that it meets the requirement that the threat they present must be imminent; whether there is further ministerial authorisation, subsequent to the inclusion of the name on the list of legitimate targets; and whether there is provision for review. Mark Field MP has pointed out that the notion that an individual is on a list until such time as they are assassinated seems to be at odds with the “imminence” requirement in Article 51 of the UN Charter: “There needs to be a process whereby the question of whether a person is still an imminent threat to the UK is regularly turned over in people’s minds.”166 The decision-making process must therefore allow for continued inclusion on any list to be kept under constant review. We note that under the US published policy, “appropriate Members of the Congress will be regularly provided with updates identifying any individuals against whom lethal force has been approved.”167
4.17These are the sorts of questions that demonstrate the necessity of independent review following an exceptional use of lethal force outside of armed conflict, and we hope they will be asked by the ISC when, as we suggest it should, it scrutinises the decision-making which leads up to any future uses of lethal force abroad outside of armed conflict. We recommend that the ISC should consider whether it should have a role in keeping under review any list which may exist of pre-identified targets against whom lethal force might be used outside of armed conflict, as happens in the US.
Legal advice
4.18We are still not clear, at the end of our inquiry, about precisely when, in the decision-making process preceding a use of lethal force outside armed conflict, legal advice is provided, by whom and about what. We asked the Government to make the relevant Government lawyers available to us so that we could find out more about the important question of where legal advice fits in the decision-making process, but the Government refused our request notwithstanding our assurance that we would respect the Government’s right to legal professional privilege.
4.19In the particular case of Reyaad Khan, it is a matter of public record that the Attorney General advised the National Security Council which, we understand, approved in principle the taking of military action against Khan in view of the threat he posed. The detailed content of his advice is not known, nor is the scope of it. The Prime Minister indicated that his advice “largely concerned self-defence”, but the Attorney General himself subsequently implied that he may also have advised about compatibility with the Law of War.168 There is nothing to suggest that the Attorney General provided legal advice about the applicability or requirements of human rights law in relation to the drone strike on 21 August. Nor is there anything to suggest that the Attorney General was involved at the later stage in the decision-making when the Secretary of State for Defence authorised the particular operation that resulted in Khan’s death.
4.20The Secretary of State for Defence pointed out that the Attorney General is not the only source of legal advice to the Government, and that the MoD also receives legal advice directly from its own legal advisers.169 He said that he took legal advice from those MoD legal advisers when deciding whether the relevant thresholds for the use of lethal force had been met.
4.21We note that there has been no reference to whether legal advice was sought from the Foreign Office Legal Advisers at any stage in the decision-making process. The Foreign Office Legal Advisers are an important part of the acknowledged expertise in international law within Government. The US Policy explicitly states that “the senior lawyers of key departments and agencies”170 will review and determine the legality of proposals to use lethal force against individual terrorists outside the US and outside areas of active hostilities. We recommend that the Government should make clear, in its response to our Report, precisely when legal advice is sought and from whom prior to use of lethal force outside armed conflict, and that legal advice should always be sought from senior Foreign Office lawyers on any question of international law.
Conclusion
4.22The applicability of the ECHR to uses of lethal force abroad outside of armed conflict has some important implications for the decision-making process. To be compatible with the right to life, operations which result in the use of lethal force outside armed conflict must have been planned and controlled in such a way as to minimise the risk of loss of life.171 The decision-making process for more conventional uses of lethal force in armed conflict is designed to secure compliance with the Law of War.
4.23In our view, the applicability of the ECHR to uses of lethal force outside of armed conflict means that the decision-making process for more conventional uses of lethal force in armed conflict may not be sufficient to ensure compliance with the relevant standards on the use of lethal force. The Government should consider whether any changes to the process are required for what the Government acknowledges to be a wholly exceptional situation which is likely to arise very infrequently.
4.24For the Government’s policy to command public confidence, and to make it more likely that decisions pursuant to it do not lead to breaches of the right to life, the decision-making process must be robust, with sufficient challenge built into the process, rigorous testing of intelligence to minimise the risk of mistakes, and access to the requisite advice including legal advice at the appropriate stages in the process.
4.25It is also important that there is provision for constant review of whether or not the relevant conditions continue to be satisfied. As Mark Field MP said in the Westminster Hall debate on drones, “[t]he notion that an individual is on a list until such time as they are eliminated or assassinated seems to be at odds with article 51 [of the UN Charter]. There needs to be a process whereby the question of whether a person is still an imminent threat to the UK is regularly turned over in people’s minds.”172 The same applies to the other main condition which has to be satisfied: whether the use of force is no more than absolutely necessary to protect life.
4.26We also consider that there could be greater clarity about the level within Government at which exceptional decisions to use lethal force outside armed conflict are made. The Prime Minister told the Liaison Committee on 12 January that “these decisions are in no way made lightly. It is one of the most difficult decisions that any Prime Minister has to make”.173 Our understanding is that the Prime Minister is only involved at the “in principle” stage of authorising a target for a lethal strike. The level of decision-making at the later operational stage should also, in our view, reflect the extraordinary seriousness of such a use of lethal force outside areas of armed conflict. Uses of lethal force pursuant to the policy will, we presume, be extremely rare, and we do not think it is unreasonable to expect ministerial involvement in the operational decision. We look forward to the Government’s clarification of these matters in its response to our Report.
161 http://www.parliament.uk/documents/joint-committees/human-rights/Government_Memorandum_on_Drones.pdf
162 Para 3.85
163 Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, The White House, Office of the Press Secretary, May 2013
164 Q21
167 See Annex 4
168 Oral evidence taken before the Justice Select Committee on 15 September, HC (2015–16) 409
169 Q24
170 Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, The White House, Office of the Press Secretary, May 2013
171 See, for example, McCann v UK. See evidence of Professor Michael Newman (DRO0011) for concern about the risk to innocent bystanders from drone strikes.
173 Oral evidence taken before the Liaison Committee on 12 January 2016, HC (2015–16) 716, Q29
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9 May 2016