5Accountability
Introduction
5.1The final area which our inquiry looked into was the important question of accountability where someone is killed pursuant to the Government’s policy. When the government orders our military to take a life outside of armed conflict, there must be proper accountability. Those making and carrying out the order to take a life need to know that there will be independent scrutiny to ensure that the highest standards have been adhered to.
5.2In this chapter we consider the need for independent scrutiny capable of leading to accountability, and the implications of the ECHR applying to the use of lethal force outside armed conflict;174 what independent scrutiny already exists; and whether this could be improved in light of the requirements of the ECHR. We consider whether there should be more independent scrutiny, and, if so, who should carry it out. We make some recommendations about how accountability could be improved in future.
5.3The need for independent scrutiny of what the Government has done in authorising the use of lethal force in Syria without prior Commons approval was raised by our Chair with the Prime Minister when he made his statement to the House of Commons on 7 September.175 The Prime Minister acknowledged that this was “a very good question” and appeared to accept that ministerial appearances before the House of Commons to answer questions are not necessarily enough, when he said he was “happy to look at what other ways there may be of making sure these sorts of acts are scrutinised in the coming months and years.”176 We welcome the Prime Minister’s acknowledgment of the importance of independent scrutiny of such extraordinary acts. Accountability is important for a number of reasons: it is a means of ensuring that decision-makers keep to standards; it is a safeguard against the danger of mission-creep when broad powers are exercised in ever wider circumstances; and it gives the public the confidence that is necessary to entrust such exceptional powers to ministers. It is also necessary in order to comply with the requirements of the ECHR.
Implications of the ECHR applying
5.4As well as the obvious need to maintain public confidence, the need for independent scrutiny is also a consequence of the fact that the ECHR applies to the use of lethal force abroad outside armed conflict. The ECHR imposes stronger procedural obligations than the Law of War.177 The procedural obligations in the Law of War are largely ex ante–they require certain safeguards to be built into the decision-making process before the decision to use force is made. The procedural obligations imposed by the right to life in Article 2 of the ECHR, however, are more onerous after the event: they require an independent and effective investigation capable of leading to accountability for any violations of the right to life, including the possibility of criminal prosecution in respect of any such violation. This is not to presume that there will have been any such violations; rather it is to provide public confidence that a mechanism is in place to enable independent scrutiny of whether there has. The investigation must be “broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force, but also all the surrounding circumstances, including such matters as the planning and control of the operations in question.”178
5.5However, while it is clear that the procedural obligation in Article 2 ECHR applies to any use of lethal force abroad for counter-terrorism purposes outside of armed conflict, it is less clear exactly what that obligation requires in this new context. Some allowance may be made for the difficulty of conducting an investigation in difficult security conditions.179 This would obviously be the case in relation to the use of lethal force against Reyaad Khan in Syria and is likely to be the case whenever there is a use of lethal force outside armed conflict, since the Government appears to envisage such uses of lethal force taking place in ungoverned spaces where there is no government to work with and no effective control over the territory. In such cases, the obligation on the authorities is to take “all reasonable steps” in the circumstances to ensure that an effective, independent investigation is conducted.180
5.6We consider first what accountability already exists in relation to such uses of lethal force abroad outside armed conflict, and compare it to the accountability mechanisms which exist in relation to the use of lethal force by the police to which the ECHR also applies.
Coroner’s inquest?
5.7One of the main ways in which the UK complies with the procedural obligation in Article 2 ECHR to have an independent and effective investigation where there has been a use of lethal force by the State is by a coroner’s inquest into the death.
5.8Reyaad Khan’s Member of Parliament, Kevin Brennan MP, asked the Minister for the Armed Forces whether there should be an inquest in the UK into the death of Reyaad Khan in Syria, which “might help to establish some of the legal parameters in such cases.”181 The Minister replied that there will be no inquest “[b]ecause it is outside the coroner’s jurisdiction.”182
5.9A coroner’s duty to investigate a death where the deceased died a violent or unnatural death only applies where the body of the deceased is in the coroner’s area,183 or, if there is no body, if the coroner suspects that the death occurred “in or near the coroner’s area.”184 Where the State uses lethal force against a person abroad, outside of armed conflict, there is therefore no duty on the coroner to investigate the death.
5.10In the case of a UK national such as Reyaad Khan, such a duty would arise if the body were repatriated to the UK, in which case a coroner’s inquest would be held in the area where the body was repatriated, just as inquests are held into the deaths of returning service personnel who have been killed in service overseas. While this is theoretically possible, if the family of the UK national were to repatriate the body of their family member, it does not appear to have been an issue in relation to any of the UK nationals who are known to have been killed by drone strikes in Syria. It therefore seems unlikely that there will be a coroner’s inquest into any of those deaths. Even if a coroner’s inquest were to take place, it is unlikely that it would satisfy the requirements of an adequate and effective investigation because coroners are not security-cleared and closed material procedures are not available in inquests under the Justice and Security Act 2013.
The Investigatory Powers Tribunal
5.11The Investigatory Powers Tribunal can hear and determine complaints against the intelligence services for breaches of Convention rights under the Human Rights Act. However, this would depend on the initiative being taken by the family of the deceased. It therefore cannot satisfy the procedural obligation to ensure that there is an independent and effective investigation.
The Intelligence and Security Committee
5.12Where the police use lethal force there is a well established independent accountability mechanism in the shape of the Independent Police Complaints Commission (the “IPCC”). The primary statutory function of the IPCC is to increase public confidence in the police complaints system in England and Wales.185 Death following police contact must be referred to the IPCC even when no complaint has been made or misconduct alleged. The IPCC therefore investigates all uses of lethal force by the police, including intelligence-based counter-terrorism operations such as the shooting of Jean Charles de Menezes in Stockwell tube station in July 2005.186 There is no equivalent independent accountability mechanism where the State uses lethal force abroad outside of an armed conflict.
5.13The only accountability mechanism capable of carrying out an investigation of such an intelligence-based use of lethal force outside armed conflict is the Intelligence and Security Committee (“the ISC”). The ISC is quite different from any other committee of Parliament. Its members are all security cleared and appointed by Parliament on the nomination of the Prime Minister.187 It is the only parliamentary committee with the ability to consider sensitive intelligence material. We see considerable force in the suggestion that the ISC is the most suitable existing body to perform this important function.
5.14We have therefore considered the ability of the ISC to provide the necessary independent and effective scrutiny where lethal force has been used abroad outside armed conflict. There are three matters in particular which in our view would enhance the ability of the ISC to provide the scrutiny that is required: automatic referral; a broader remit to enable it to consider operational matters where necessary; and access to expert legal advice which is independent of the Government.
Automatic referral
5.15The ECHR requires the authorities to act of their own motion in investigating a use of lethal force once the matter has come to their attention: they cannot leave it to the family of the deceased to take the initiative. In the case of uses of lethal force by the police, this is satisfied by the automatic referral to the IPCC of any death following police contact.
5.16There is no automatic referral to the ISC or anyone else of any use of lethal force outside of armed conflict. Our Chair asked the Prime Minister on 7 September to refer the Reyaad Khan strike for investigation to the ISC, but he did not respond to that request, nor subsequently refer the matter to the ISC. The ISC announced on 29 October, of its own accord, that it would be looking at the intelligence on which the drone strikes in Syria were based.
5.17Our Chair asked the Prime Minister, at Liaison Committee on 12 January, to agree to automatic referral to the ISC where lethal force is used outside armed conflict, but he declined on the basis that it is for the ISC to decide its own work programme.188 The Defence Secretary gave the same reason in his oral evidence to us.189
Remit
5.18The drone strike which killed Reyaad Khan in Syria was an intelligence-based counter-terrorism operation using military means. Although, for reasons we have explained above, we accept that the particular drone strike on Reyaad Khan was part of the wider armed conflict with ISIL/Da’esh in Iraq, to which the Law of War therefore applied, the Government envisages similar intelligence-based counter-terrorism operations using military means outside of armed conflict, such as in Libya.
5.19For the ISC investigation into such a future use of lethal force to be thorough and effective, and therefore to command the confidence of Parliament and the public, it will need to investigate a number of questions which will determine the lawfulness of the use of lethal force, such as:
- Was the individual in question threatening the UK with armed attack?
- Was the threatened attack imminent?
- Was the use of lethal force “absolutely necessary” to protect life (ie. genuinely a last resort, or was there any other way of preventing the threatened attack, such as by capture of the individual or arrest of his associates in the UK)?
- Was the degree of force used proportionate to the threat?
- Did the planning and control of the operation minimise the risk of loss of life?
5.20To investigate these issues effectively the ISC will need to consider in detail the surrounding circumstances of the military operation that culminated in the lethal drone strike and will need to be provided by the MoD with all the relevant information in relation to that particular military operation. However, the current Memorandum of Understanding between the Prime Minister and the ISC (dated November 2014)190 precludes the ISC from considering the operational activities of the MoD.
5.21Section 2 of the Justice and Security Act 2013 provides that the ISC may examine the operations of the Security Service, the Secret Intelligence Service and GCHQ, but under s. 2(2) “The ISC may examine or otherwise oversee such other activities of HMG in relation to intelligence or security matters as are set out in a memorandum of understanding.”
5.22Under the current memorandum of understanding the ISC and the PM have agreed that the ISC shall oversee specific operational activities of the MoD (the strategic intelligence activities undertaken by the Chief of Defence Intelligence, and “offensive cyber”), but in a footnote there is a sweeping exclusion of general military operations from the oversight of the ISC:191
“In respect to operational matters [ … ] general military operations conducted by the MOD are not part of the ISC’s oversight responsibilities.”
5.23The Prime Minister may have a discretion under the memorandum of understanding to permit the ISC to consider particular operational matters if certain conditions are met192 (“may” because it is not clear from the memorandum whether this discretion is precluded by the general exemption for military operations in footnote 9), and in such circumstances the MoD could choose voluntarily to provide information about the operation to the ISC. However, even if this interpretation of the memorandum is correct, it leaves the effectiveness of the ISC’s investigation in the hands of the Government, which will not provide the necessary public reassurance or satisfy the requirements of the ECHR.
5.24We therefore believe that the ISC’s remit should be widened to enable it to fulfil the important function of conducting thorough and effective scrutiny capable of providing Parliament and the public with the necessary reassurance that future uses of lethal force outside of armed conflict were necessary and proportionate. The need for this has been underlined by the exchange of correspondence between Andrew Tyrie MP and the Prime Minister on this subject.193 The Prime Minister was unable to provide the necessary reassurance that the ISC would be able to conduct a sufficiently broad investigation into the military operation and would be provided with all the relevant information to enable it to do so.194 The current Memorandum of Understanding between the Prime Minister and the ISC prevents the ISC from considering military operations and leaves the provision of information that the ISC needs to carry out its investigation in the discretion of Ministers and the Prime Minister.
5.25Andrew Tyrie MP pressed the Prime Minister on this at Liaison Committee on 12 January, asking for a new Memorandum of Understanding to be drawn up which does not exclude military operations from oversight by the ISC, and for the Prime Minister to agree not to withhold any relevant information that the ISC will need to conduct an effective investigation of the drone strike in Syria on 21 August. The Prime Minister agreed to consider whether the Memorandum of Understanding prevents the ISC from carrying out an effective investigation into the drone strike, but declined to undertake to make all relevant information available to the ISC, on the basis that it may be justifiable to withhold some particularly sensitive intelligence information, for example when there is a risk that its disclosure might endanger life.
5.26After the exchange with the Prime Minister at Liaison Committee, the Chair of the ISC, the Rt. Hon. Dominic Grieve QC MP, wrote an open letter to our Chair in which he said that the unique contribution which the ISC can bring to Parliament’s collective oversight of the Government’s policy was “its statutory power to access highly classified material and its ability to examine the intelligence which led to the decision to conduct the operation.”195
5.27We welcome the ISC’s announcement that one of its immediate priorities is to look into the intelligence basis surrounding the recent drone strikes in which British nationals were killed. We agree with the Chair of the ISC that his Committee is best placed to investigate such matters. Where the use of lethal force is outside armed conflict, we think it is necessary to enable that investigation to go further and to look more broadly at the operational aspects of that use of lethal force, to ensure that there is appropriate accountability for the whole operation that culminated in the taking of life outside of an armed conflict.
5.28We note that in a recent written answer the Secretary of State for Defence referred to the Prime Minister and the Chair of the ISC having “reached agreement on the disclosure of material to the ISC that will enable the Committee to conduct a review of the threat posed by Reyaad Khan.”196 That may be sufficient in the case of a use of lethal force in armed conflict (as we accept was the case in relation to Reyaad Khan). In our view, however, where the use of lethal force is outside armed conflict the ISC should be able to conduct the necessary independent scrutiny of whether the particular use of lethal force abroad was justified and lawful; an inquiry only into the threat posed by the target of the strike will not be broad enough to consider all the questions that need investigating. It is therefore necessary to build on the positive start that has been made by the ISC, by ensuring that it has the power and the information to conduct such a broader investigation.
Independent Legal advice
5.29We also note a point made by a predecessor Committee, in the context of the ISC’s role investigating allegations of complicity in torture: the need for Parliament and its committees, when they are scrutinising the compatibility of Government policy with legal standards, to have access to independent legal advice which is not provided by the Government’s own lawyers.197
5.30We recommend that the Government should establish clear independent accountability mechanisms in relation to the future use of lethal force abroad outside of armed conflict, capable of carrying out effective investigations into whether particular uses of lethal force were justified and lawful, including:
- automatic referral to the ISC of any such use of lethal force;
- a revised Memorandum of Understanding between the Prime Minister and the ISC making clear that the Government accepts that the ISC has the power to consider intelligence-based military operations, and that the MoD must provide the ISC with all the relevant information about such an operation that the ISC needs to make its investigation effective;
- access to independent legal advice rather than legal advice from the Government’s lawyers.
Legal accountability
5.31Accountability through the ISC is a form of “political accountability”: it involves scrutiny of ministers’ actions as part of the democratic process, conducted by fellow parliamentarians. We have considered whether there is also a role, alongside such political accountability, for any form of legal accountability: that is, accountability through the courts, for example by the application of the criminal law, or civil law proceedings where appropriate.
5.32In the case of uses of lethal force by the police, the independent accountability provided by the IPCC is in addition to a variety of forms of legal accountability, including coroner’s inquests, prosecutions, and judicial review. As the College of Policing’s Authorised Professional Practice (“APP”) on Armed Policing points out, “despite making important and often time-critical decisions, police officers are still accountable through the law for their actions.”
5.33In our questions to the Government about the accountability mechanisms which exist following a use of lethal force outside an area of armed conflict, we specifically asked about legal accountability, including what role there is for the judiciary in holding the Government to account and what legal remedies exist for victims of unlawful strikes. The Government did not answer these questions. In its Memorandum in response to our letter, the Government refers only to political accountability for its actions to Parliament. It refers to the Prime Minister’s statement to the House of Commons on 7 September, the ISC’s role in relation to issues touching on the use of intelligence, and our own inquiry.
5.34The Government’s position appears to be that there should be no accountability through the courts for any action taken pursuant to its policy of using lethal force outside areas of armed conflict. The Government’s memorandum refers to the fact that the use of military force in the exercise of the inherent right of self-defence is within the Government’s discretionary powers under the Royal Prerogative, and invokes the importance of the Government being able to act effectively and decisively to protect the country.
5.35In its response to the letter before claim from Caroline Lucas MP and Baroness Jones, threatening judicial review of the Government’s failure to formulate and publish a policy on targeted killing outside of armed conflict, the Government argued that the proposed claim was “non-justiciable”: that is, a matter on which the courts have no jurisdiction to enter, because of the extreme sensitivity of the issues it would require the court to consider in order to adjudicate on the claim.
5.36The Defence Secretary, in his oral evidence to us, clearly did not think there was any need for legal accountability: “the Government should be accountable to Parliament
[ … ] That is what I am doing, or trying to do, this afternoon.”198
5.37The Government is right to say that the courts tread very carefully in relation to the exercise of prerogative powers concerning the use of force abroad and the deployment of military force. This is as it should be. However, being slow to review the exercise of such powers and deferential to discretionary assessments based on intelligence or other sensitive considerations is qualitatively different from refusing to consider altogether any questions which arise about the legality of Government action which has a serious effect on fundamental rights.199 Political accountability is not a substitute for legal accountability: both are necessary, and they can exist alongside each other. The courts have a well-established role in relation to the use of lethal force in counter-terrorism law enforcement operations, notwithstanding that such operations are often based on intelligence and the exercise of judgment by front-line officers. Indeed, the ECHR requires there to be access to court for the determination of any legal issues concerning compatibility with the right to life, and the possibility of legal accountability for unlawful deprivations of life.
5.38We agree with the Government about the importance of political accountability, and ask the Government to reconsider its apparent position that there should be no accountability through the courts for any action taken pursuant to its policy of using lethal force outside areas of armed conflict.
175 HC Deb, 7 September 2015, cols 23-27
177 For a more detailed explanation see the Legal Memorandum contained in Annex 1 to this Report.
178 See Al-Skeini v UK, 55721/07, 2011, para 163
179 See Al-Skeini v UK, 2011, para. 164.
180 Ibid.
181 HC Deb, 1 December 2015, cols 61WH-62WH
183 Coroners and Justice Act 2009, section 1(1)
184 Coroners and Justice Act 2009, section 1(4)
185 Police Reform Act 2002, section 10
186 See IPCC Report into the shooting of Jean Charles de Menezes
187 See Justice and Security Act 2013, section 1(4). For a description of the ISC’s functions and remit, see the Committee’s website
188 Oral evidence taken before the Liaison Committee on 12 January 2016, HC (2015–16) 716, Q29
189 Q30
190 Intelligence and Security Committee of Parliament, Annual Report 2013–14, HC 794, Annex A
191 Ibid., p12
192 Ibid., para 11
193 http://www.parliament.uk/business/committees/committees-a-z/commons-select/liaison-committee/publications/
194 The correspondence between the Chair of the Liaison Committee and the Prime Minister is on the Liaison Committee website: http://www.parliament.uk/documents/commons-committees/liaison/correspondence/Letter-from-PM-070116.pdf
195 Open letter of 14 January 2016 from the Rt Hon Dominic Grieve QC MP to the Rt Hon Harriet Harman QC MP, available on the ISC website.
196 PQ 2432 [Syria: Military Intervention] 27 January 2016
197 Joint Committee on Human Rights, Twenty-third Report of Session 2008–09, Allegations of Complicity in Torture, HL Paper 152, HC 230
198 Q30
199 In Noor Khan the Government’s non-justiciability argument was accepted by the courts, but turned on a very particular aspect of the case, which in the courts’ view required it to determine whether the US policy on targeted killing was unlawful, a matter on which courts do not adjudicate for reasons of international comity.
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9 May 2016