Sale of arms to Saudi Arabia held to be based on flawed decision-making process

28 June 2019 by Dominic Ruck Keene

In R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, the Court of Appeal upheld a challenge to the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to Saudi Arabia for possible use in the conflict in Yemen.

The Court has overturned the decision of the Divisional Court, which was discussed on the Blog here.

The Campaign Against Arms Trade argued that there was a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. CAAT claimed, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which had targeted schools and medical facilities.

The Court of Appeal held that the decision-making process had been irrational, as it had not included an assessment as to whether there had been previous breaches of international humanitarian law in the past, without which there could not be a proper assessment of the risk of future breaches.

Legal background

The Court of Appeal noted the legislative background to the grant of export licences under the 2002 Export Control Act, including the 2008 EU Common Position on arms exports and its associated ‘User’s Guide’, and the 2014 guidance given by the Secretary State to the effect that the UK would

not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law” and  would “exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the European Union.

The Court of Appeal further noted the key principles of international humanitarian law (IHL), in particular those of distinction between civilian and military targets and of proportionality between likely civilian casualties versus military advantage gained by an attack.

The Court of Appeal’s decision

The Court of Appeal began its substantive judgment by re-iterating the relevant principles governing its approach to a judicial review in this kind of claim:

• Judicial review was not an appeal against the merits of a governmental decision.
• The Court’s role was to assess whether the Secretary of State had erred as a matter of law in the assessment of those merits.
• The only legal error alleged was that of irrationality – which had a deliberately high threshold.
• CATT claimed a failure on the part of the decision-maker to take reasonable steps to acquaint himself with the relevant information in order to enable him to answer the question which he to answer. Under the test of irrationality, a court should intervene if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision.
• The decision-making in question was an iterative process and the court should only consider evidence that had been before the Divisional Court.

The first ground of appeal was the Secretary of State had failed to make an assessment as to whether there had been a pattern of previous violations of IHL in Yemen by Saudi Arabia and that as a result he had failed to have regard to a centrally and obviously relevant factor in a decision whether to grant an export licence. It was argued that such an assessment  was an essential starting point for estimating the future risk. If the assessment of the past was flawed, so would be the assessment of the “clear risk test”, particularly so in a case which was acknowledged in the evidence and by the Divisional Court to be a “finely balanced decision”.

It was common ground that no such assessment had been made. The Court of Appeal stated that

the government’s public description of the process moved from an assertion that there was a process of review with a finding of no breaches of IHL, to a more ambiguous formulation, albeit one capable of being read as implying a continuing review and assessment of whether breaches had taken place.

The Court noted that the Special Advocates before the Divisional Court had concluded that there had been a deliberate decision not to make any assessment of the likelihood of any breach of IHL in relation to any specific incident in Yemen. The Court held that

although there would appear to have been an initial decision to make the assessment of violation (or at least an assumption that would be done), and a subsequent decision not to do so (or at least a change of position), the latter decision, and the reasoning for it were not reduced to writing.

In addition to the contention that an assessment of past violations was required, the Claimant further argued that rationality required the Secretary of State to either accept or formulate proper reasons for rejecting the conclusions of NGOs and the UN Panel of Experts (established by the UNHCR) as to whether or not there had been IHL violations: he was required to have evidence that was rationally capable of displacing the prima facia evidence of a pattern of IHL violations.

The core argument made by the Claimant was that

reliance on the continuing engagement, training and support given to Saudi Arabia [by the UK], as the basis for concluding that assessment of past violations was unnecessary, was simply unreliable and irrational. Without assessment of whether there had been violations of IHL, there was no evidence that such engagement had been, and therefore would be, effective in preventing future violations.

The Secretary of State did not challenge the conclusion of the Divisional Court that the open source reporting constituted “a substantial body of evidence suggesting that the coalition has committed serious breaches of IHL in the course of … the Yemen conflict.” The Secretary of State, however, stressed that this was only part of the picture, which included the continuing close engagement with Saudi Arabia, as well as the consistent efforts on the part of the UK, to foster respect and observance of IHL by the Saudi-led Coalition.

The Court of Appeal began its conclusions by noting that the Secretary of State could access a great deal of information that the NGOs and the UN Panel of Experts did not have – in particular as to why events had occurred, as opposed to what had happened. The Court agreed that the analytical processes were rigorous and robust, multi-layered, and carried out by numerous expert government and military personnel – “upon which the Secretary of State could rely, and in fact had no choice but to rely.”

The Court also emphasised that those advising the Secretary of State were all along keenly alive to the question of possible violation of IHL and its impact on continued supply of weapons.

However, the Court held that

The question whether there was an historic pattern of breaches of IHL on the part of the Coalition, and Saudi Arabia in particular, was a question which required to be faced. Even if it could not be answered with reasonable confidence in respect of every incident of concern (which CAAT accepts, and so do we) it is clear to us that it could properly be answered in respect of many such incidents, including most, if not all, of those which have featured prominently in argument. At least the attempt had to be made.

In the view of the court, 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 — it would help determine whether Saudi Arabia had a genuine intent and the capacity to live up to the commitments made.

Nevertheless, the Court emphasised that it did not conclude that there was only one possible answer in respect of future risk, even if historic violations were assessed to have taken place.

The Court rejected the second ground of appeal – namely that there had been a failure by the Secretary of State to take reasonable steps to acquaint himself with answers to the questions as to: (1) whether Saudi Arabia had legislation in place prohibiting violations of IHL; (2) whether there were mechanisms in place to secure accountability of members of the Saudi armed forces for breaches of IHL; and (3) whether there was an independent and functioning judiciary in Saudi Arabia capable of punishing members of the armed forces who violate IHL.

The Court held that the focus was on Saudi Arabia as a state had a record of compliance with IHL, not on individual responsibility for war crimes. It was therefore reasonable and rational for the Secretary of State to focus his analysis on other matters – and the second ground added nothing to the first ground as to how he had done so.

Following the judgment, the Government has temporarily halted the grant of further export licences, but is understood to be appealing to the Supreme Court.

Comment

This judgment is an interesting illustration of the power, but also the limits, of judicial review. The Court of Appeal emphasised the limitations of the court’s ability to review the merits of governmental decisions, particularly in areas where the government necessarily enjoys a wider margin of discretion. Despite the media reporting that the Court had ruled that the UK arms sales to Saudi Arabia were “unlawful” being technically correct, it is important to note that the Court explicitly did not rule whether or not the answer to the decision-making process if done correctly would be that there was a clear risk of future IHL violations, such that export licences should not be granted.

However, the Court held the government to account for failing to include within its analysis an assessment that the relevant domestic and international law context seemed inevitably to require, or at the very least to be explicitly decided against, as part of a reasoned process.

Dominic Ruck Keene is a barrister at One Crown Office Row.

Angus McCullough QC of One Crown Office Row appeared as a Special Advocate, but did not participate in the writing of this article.