R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020
The UK Government has undertaken to suspend all arms sales to Saudi Arabia, after the Court of Appeal ruled that the granting of weapons export licences to the regime was 'irrational and therefore unlawful'.
For the last four years, a coalition of states led by Saudi Arabia has carried out military actions against Houthi rebels who in early 2015 seized control of parts of Yemen. During this time, the UK Government – first through the Department of Business, Innovation and Skills, and later through the Department of International Trade – has granted weapons export licences to the Saudi regime worth £4.7bn, for use in the conflict. The Campaign Against Arms Trade ("CAAT") brought a judicial review challenge in the Divisional Court in 2017, submitting that Saudi Arabia had committed repeated and serious breaches of international humanitarian law throughout the conflict (including conducting indiscriminate or deliberate airstrikes against civilians), and that the Government failed to have regard to these actions when assessing whether to grant the relevant licences.
The Divisional Court ruled that Government's decision-making was rational, but last week this was overturned in CAAT's favour by the Court of Appeal. The Court did not conclude that the exports themselves were right or wrong, but said the process applied in approving the exports was irrational. Had it followed the correct process, the Government could very well have arrived at the same ultimate decision to proceed with the exports.
The Government has indicated it will now seek permission to appeal.
Legal background and Divisional Court decision
The UK's export of arms and military equipment is governed by the Export Control Act 2002. Pursuant to section 9 of this Act, the Government has issued guidance on the position under EU and UK law for assessing weapons export licence applications, known as the 'Consolidated EU and National Arms Export Licensing Criteria' (the "Consolidated Criteria"). At EU level, the Council adopted a 'Common Position' in 2008, which defines common rules governing control of exports of military technology and equipment. There is also a 'User's Guide' setting out best practices for Member States following these rules.
Of particular relevance to the proceedings was Criterion 2 of the Common Position and Consolidated Criteria. This requires the Government to assess the respect by the licensee country for human rights and fundamental freedoms, as well as international humanitarian law. Having performed its assessment , the Government must exercise special caution and vigilance in granting weapons export licences, taking account of serious violations of human rights, and refuse to grant licences where there is a clear risk that weapons might be used in the commission of such violations.
In the Divisional Court's view, the Government was rationally entitled to conclude:
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the coalition of states was not deliberately targeting civilians;
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Saudi processes and procedures have been put in place to secure respect for the principles of international humanitarian law;
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the coalition of states was investigating incidents of controversy, including those involving civilian casualties;
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the Saudi authorities have throughout engaged in constructive dialogue with the UK about both its processes and incidents of concern;
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Saudi Arabia had been and remained genuinely committed to compliance with international humanitarian law; and
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there was no 'clear risk' that there might be 'serious violations' of international humanitarian law such that UK arms sales to Saudi Arabia should be suspended or cancelled under Criterion 2.
Grounds for appeal
CAAT appealed against the Divisional Court's decision on the following open grounds:
- Ground 1 – that the Government's consideration of Saudi Arabia’s past and present record of respect for international human rights, including whether a pattern of violations could be discerned, was fundamentally deficient.
- Ground 2 – that the Government failed to ask the questions identified in the User’s Guide regarding the legal mechanisms Saudi Arabia has in place prohibiting and punishing human rights violations.
- Ground 3 – that the Divisional Court had adopted an incorrect approach to the standard of review in the present case.
- Ground 4 – that the Divisional Court had failed to answer whether a reference to 'serious violations' of international human rights in Criterion 2 was synonymous with 'grave breaches' of the Geneva Conventions, or referred to serious human rights violations more generally.
Court of Appeal decision
The Court considered both open and closed evidence submitted by the parties. At an interim hearing in May 2018, CAAT was refused permission to appeal on Ground 3. At the main hearing in April this year, CAAT succeeded on Ground 1, although its appeal was dismissed on all other grounds.
Ground 1
CAAT argued that where there is a body of independent evidence demonstrating a pattern of human rights violations, the principle of rationality requires the Government to consider that evidence, and reach a view about whether such a pattern has been shown or not. This was because the existence of a pattern of violations would be central to the question of a clear risk of serious violations in the future. CAAT's argument was not that the Government had reached the wrong factual conclusion, but that it had failed to reach any conclusion at all.
The Court of Appeal concluded in CAAT's favour that the Government was required to face the question whether there was a historic pattern of breaches of international human rights law on Saudi Arabia's part, but it had not attempted to do so. Around 2016 the Government either made a decision, or changed its position, so that there would be no assessment of historic human rights breaches. An argument advanced by the Government that it was inappropriate to make such an assessment contradicted the guidance available, including the Common Position.
As it had not conducted historic assessments, then Government could not reach a rational conclusion as to the effect of the training, support and other inputs provided by the UK to Saudi Arabia, or the effect of any high level assurances by the Saudi authorities. If the result of historic assessments was that violations were continuing despite all such efforts, then that would unavoidably become a major consideration in looking at the 'real risk' in the future.
Ground 2
The Court of Appeal agreed with the Government's view that the User's Guide was designed to share best practice for decision-makers, rather than constitute a set of instructions. The standard of irrationality is deliberately strict, and it is for the Government to judge whether particular questions may be relevant, provided that it acts rationally. In this case, it was not a matter of rationality whether to pose the three specific questions identified by CAAT.
Ground 4
The Court of Appeal found that the Divisional Court did not err in law in its comprehension of the meaning of the term 'serious violations' of international human rights. Contrary to CAAT's submissions, the concept was broader than, and not synonymous with, the concept of war crimes or grave breaches of international human rights law. The Divisional Court had understood this correctly in its judgment. It also had the advantage – which was not afforded to the Court of Appeal – of having considered all of the vast evidential material, and formed a clear assessment of that evidence.
The Court refrained from clarifying the definition of 'serious violations' for the benefit of the Government, as the function of judicial review is generally to assess the lawfulness of past executive action, not to give advice for the future.
Comment
The Court of Appeal's ruling reminds us that judicial review proceedings are not concerned with the merits of a particular decision, but the approach taken by the relevant body in the assessment of those merits. Therefore, the Court was not concerned with whether or not it approved of arms sales to Saudi Arabia, but whether the Government acted irrationally its approach to the human rights assessment over the period it was granting export licences.
It is perhaps revealing that at least none of the open grounds advanced the argument that the Government's decisions were Wednesbury unreasonable, i.e. no reasonable person acting reasonably could have made the decision. Nonetheless, whilst there was no suggestion that the Government's decision to permit arms exports was unreasonable, it was clear that it indeed took an irrational approach in failing to account for Saudi Arabia's historic human rights breaches.
This is a landmark ruling that appears to rebuke four years of UK policy regarding arms sales in the Yemen conflict. The judgment has been welcomed by CAAT, as well as the intervening human rights groups including Amnesty International and Human Rights Watch. However, the Government has sought permission to appeal, and if this is granted, the next court decision may well turn out in its favour.
Even on the basis of the current decision, it is important to remember that arms sales are only suspended until the Government has retaken its decisions to grant the export licences on the correct legal basis. Judicial review proceedings do not allow the Court to substitute its own decision for the Government's, and it will be up to the Government to make the decision whether to continue its policy, after conducting the proper assessment of Saudi Arabia's potential violations.
Written by Jonathan Peters, Trainee Solicitor