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Exploring the court’s power to block sale of arms to Saudi Arabia

Missiles 91309216 s. 146x219Sue Willman, senior partner at Deighton Pierce Glynn, analyses the case of R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade (Amnesty International and others intervening) and its implications for UK arms trade.

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Original News
Secretary of State responds to Court of Appeal ruling on military export licensing to Saudi Arabia, LNB News 20/06/2019 80

The Secretary of State has responded to a ruling by the Court of Appeal on military export licences to Saudi Arabia, which found against the government on one of four grounds of appeal—namely that the government failed to follow the correct procedure in order to make a lawful assessment of the risk that military exports may be used in the commission of violations of international humanitarian law. Following its decision, the Court of Appeal referred the matter back to the Secretary of State to reconsider the decisions in accordance with the correct legal approach.

What are the practical implications of this case?
Following the judgment in R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade (Amnesty International and others intervening), the Secretary of State undertook not to grant any new licences for the export of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen until he has reviewed past decisions and/or pending an application for permission to appeal and a stay of execution (in the final court order). This was followed by an emergency statement in Parliament announcing arms sales to Saudi Arabia were suspended pending an appeal.

A few days later, the ban was extended to Bahrain, Egypt and other countries with well-known human rights violations. It remains to be seen whether the government will obtain permission to appeal to the Supreme Court and a stay of execution which could render the Court of Appeal decision ineffective pending a final judgment.

What was the background?
In 2015 a coalition led by Saudi Arabia launched a military campaign in support of pro-government forces, against the Houthi opposition in Yemen. The United Nations Development Programme has recently found that since the war began, nearly a quarter of a million people have been killed. Amnesty International has estimated that over 22 million people in Yemen are in current need of humanitarian assistance.

The UK granted licenses (and refused to suspend existing licenses) for the supply of a range of military equipment and technology to Saudi Arabia for use in Yemen. In response, in late 2015, the NGO, Campaign Against the Arms Trade (CAAT) issued a judicial review claim, challenging the government’s ongoing failure to suspend licences to Saudi Arabia for possible use by the coalition in the conflict in Yemen. The defendant was initially the Secretary of State for Business Innovation and Skills, since replaced by Secretary of State for International Trade.

In essence, the CAAT argued that the UK was not interpreting the Export Control Act 2002 correctly. On 25 March 2014, the then Secretary of State set out in a written statement to Parliament what was described as ‘consolidated EU and national arms export licensing Criteria’ (consolidated criteria) based on the EU Common Position 2008/944/CFSP. Under criterion 2(c) of the Common Position 2008/944/CFSP, the UK must deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law. The Divisional Court rejected the claim.

The CAAT were granted permission to appeal. Ground 1 of the appeal was that the evidence showed that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for international humanitarian law (IHL), including whether a pattern of violations could be discerned, was fundamentally deficient. Amnesty International, Human Rights Watch, Rights Watch UK and Oxfam were granted permission to intervene, in particular on the issue of the value and unique advantages of NGO, UN and third party reports used as evidence of violations of IHL.

What did the Court of Appeal decide?
The CAAT succeeded on ground 1—that the Secretary of State’s consideration of Saudi Arabia’s past and present record of respect for IHL, including whether a pattern of violations could be discerned, was fundamentally deficient. The appellant contested, and the court agreed, that this was a question of rationality which the court emphasised is a deliberately high threshold because (at para [57]):
‘The court is not entitled to interfere with the process adopted by the Secretary of State merely because it may consider that a different process would have been preferable. What must be shown by CAAT is that the process which was adopted by the Secretary of State was one which was not reasonably open to him’

Here the central question identified by the Court of Appeal (at para [62]) was ‘whether there was a historic pattern of breaches of IHL on the part of the coalition, and Saudi Arabia in particular, was central to the estimation of the risk of future violations.’

A critical aspect of the court’s finding lay in the evidence disclosed in the ‘closed’ proceedings which showed that in 2016, there had been a secret decision made by the government that no assessment of whether Saudi Arabia had committed a past violation of IHL would be made. The court found that no ‘overall assessment of violations of IHL was ever made’ by the Secretary of State (at para [74]).
Importantly for the interveners, the court also accepted the importance of UN and NGO evidence (at paras [87]–[92]):

‘The submissions of all the interveners emphasise the long line of authority recording the importance of evidence from organisations such as NGOs and the UN…The argument of CAAT is that there was sufficient material identified by these sources to found proper assessments and conclusions. It was wrong to discount this material as the Divisional Court did, and wrong to treat the information available to the Secretary of State as displacing or fully discounting the evidence available from the Interveners and the UN.’

Sue Willman of Deighton Pierce Glynn acted for the first interveners. Sue Willman would like to thank Ahmed Ali for his help in drafting this article.

Interviewed by Lucy Karsten.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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