Limits of judicial review in international relations underlined

2 October 2015 by Gideon Barth

Ministry of Defence (Photo credit: Guardian)

R (Nour) v Secretary of State for Defence [2015] EWHC 2695 (Admin)

How far are the courts willing to go to intervene in matters of foreign affairs in order to protect human rights? Spoiler: they’re not.

Summary

The Claimant, Mr Nour, is a Sudanese human rights lawyer who claimed asylum in the UK in 2009. Concerned that the UK Government were contributing to human rights abuses by the Sudanese Armed Forces (‘SAF’), he made this fairly bold application for judicial review. It challenged the legality of an assessment made by the Government that the risks of contributing to human rights abuses could be mitigated.

Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the courts’ unwillingness to become embroiled in issues pertaining to international relations. The challenge was to an assessment based on the ‘Overseas Security and Justice Assistance Human Rights Guidance’, (‘the OSJA Guidance’). The Government came to the conclusion that there were risks that providing training and assistance to the SAF would contribute to human rights violations but these risks could be mitigated.

Mr Justice Simon fully accepted the nature of the entity the Government was dealing with:

‘[20] It is well-documented that for more than a decade the SAF has engaged in indiscriminate and deliberate killing of civilians, mass rape and ethnic cleansing…

… The SAF’s human rights abuses are not simply the acts of rogue elements within Sudan’s army. They are part of deliberate policies to crush an insurgency and of ethnic cleansing ordered by senior members of the SAF and carried out under the leadership of its officers.’

But, looking at each stage of the decision-making process under challenge, Simon J refused to accept that the decisions were irrational.

The OSJA Guidance

William Hague, (the then-former Foreign Secretary) set out the purpose of the OSJA Guidance in its foreword. Improving security and stability in countries overseas has benefits for both citizens of the UK and of that country and that includes, he said, working with countries with questionable attitudes towards human rights. So the guidance exists to help government decision-makers balance the risks and benefits associated with helping these questionable regimes.

It provides for a four-stage process:

• Stage One: Assess the internal situation in the host country, its stability and its attitude to human rights law and international humanitarian law (‘IHL’).
• Stage Two: Identify the human rights and IHL risks associated with the proposed assistance.
• Stage Three: Examine what steps can be taken to mitigate the risk that the assistance might directly or significantly contribute to any of the matters at stage 2?
• Stage Four: Ask whether there a serious risk that the assistance might directly or significantly contribute to a violation of human rights and/or IHL?

There then comes some helpful colour coding:

• Green if there is no risk of contributing to human rights violations or approval has already been granted.
• Amber if there is a serious risk of contributing to human rights violations but these can be mitigated, or there is some reputational risk to the Government.
• Red if there are serious risks and they cannot be mitigated.

Amber and Red both mean that consultation with the Minister is required.

The OSJA Assessment, 10^th June 2015

This year, the Government offered assistance and training to the SAF in the form of two courses, ‘Psychology of Leadership’ and ‘Managing Defence in a Wider Security Context’. In the OSJA Assessment on 10^th June, the Government gave this the Amber light: there were risks of directly or significantly contributing to a violation of human rights, but those risks could be mitigated.

According to the Government, there were concerns about the internal situation in the host country, and they made a detailed assessment of this. There were also political reputational risks of being associated with a military force such as this one. However, the government would not be providing any training to improve their military operational and combat capacity. Indeed, in the Government’s view, the courses would provide an opportunity to teach them about British values and human rights.

Justiciability

Mr Justice Simon made some preliminary points on justiciability and the ambit of the court’s power of review over the OSJA Assessment.

First, he regarded decisions relating to political or reputational risk to be outside the court’s jurisdiction.

Secondly, in a classic exercise of judicial deference, he held that the decision-maker was better placed to make a well-informed decision about these matters than the court so he would not intervene unless satisfied that the assessment was Wednesbury unreasonable or irrational (a decision that no reasonable decision maker could have reached).

Was the decision irrational?

On all four of the Claimant’s arguments, the judge was not persuaded that that the decision was irrational.

First, the Claimant argued that the Government failed to gather information regarding the effects of training and assistance on human rights violations in the past, and this was therefore a breach of the Guidance. However, Simon J held that this was a misreading of the guidance and that the requirement was actually to consider effects of mitigation in the past. Those had been considered. There was also no Tameside duty (a common law duty of sufficient enquiry) that the judge could import into this context. It was up to the decision-maker, experienced and knowledgeable in these matters as it was, to decide what was relevant.

Secondly, the Claimant contended that it was irrational to decide that there were no risks associated with the training and assistance. But again, the judge found that the decision-maker was better placed to make these decisions and it was not for the judge to consider these irrational. Not least, from the evidence heard about the courses, there was no apparent direct or significant contribution to human rights or IHL abuses.

Thirdly, the Claimant suggested that the decision was irrational because the Government had no knowledge of whether those trained in the past were involved in human rights abuses or how the assistance affected the operational skills of the Sudanese army. Again, this was rejected. In the court’s judgment, the Government had not shied away from the human rights and IHL issues that were there, reaching a nuanced view that could not be described as irrational.

Finally, in his most optimistic argument, the Claimant suggested that the Assessment marked a change in Government policy, rendering the decision unlawful. In the OSJA Assessment under challenge, the Government said that they would not provide assistance or training that could improve ‘lethal’ operations. In previous assessments, they referred to ‘military’ operations. This, he argued, meant the Government was now prepared to assist in military operations (just not lethal ones).The judge dismissed this argument, holding that they indicated no change in Government policy.

Conclusion

This judgment will come as no surprise and was always going to be very difficult for the Claimant. Judicial review is limited in scope and the courts show substantial deference to the Government in matters of international politics. What’s more, judicial deference is seen to be an essential element of public law. The separation of powers is a fundamental principle of the British constitutional system, preventing the courts from encroaching on the legitimate (however worrying) decisions of the Government. That’s just the system that exists.

But naturally, having military relationships with such regimes is a source of great concern for human rights activists in the UK. Should the courts abandon or roll back judicial deference in order to properly uphold our human rights obligations? One wonders whether the court would be more inclined to intervene if it was the Ministry of Justice which got into a tricky relationship with an autocratic human rights-abusing regime (see Jack of Kent’s blog for more information on that).