In a recent high profile judicial review claim, Campaign Against Arms Trade (CAAT) challenged a decision of the Secretary of State for Trade. Amnesty International, Human Rights Watch, Rights Watch (UK) and Oxfam all intervened. In its judgment, the Divisional Court emphasised judicial self-restraint, and confirmed that the courts must give suitable recognition to the institutional competence of those charged with complex evaluative decision-making.

The case of R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade [2017] EWHC 1754 (Admin) addressed the question of whether the Secretary of State (“SoS”) was obliged by law to suspend existing licences, or cease granting new licences, for the export of arms to the Kingdom of Saudi Arabia. The claimant CAAT argued that publicly available reports of actions by the Saudi led coalition against the Houthi rebellion in Yemen demonstrated ‘overwhelmingly’ that Saudi Arabia had committed repeated and serious breaches of international humanitarian law during the conflict in Yemen. This was said to dictate the conclusion that there was a “clear risk” that arms exported from the UK to Saudi Arabia “might be used in the commission of a serious violation of international humanitarian law”. Under government guidance issued under Section 9 of the Export Control Act 2002, the government is obliged as a matter of public law to abide by certain criteria in granting or refusing export licences, including not granting them where a “clear risk” of this kind existed. CAAT therefore asserted that it was no-longer lawful for SoS to licence such exports.

The judges in the case were Lord Justice Burnett, who will become Lord Chief Justice of England and Wales on 2 October 2017, and Mr Justice Haddon-Cave. In their judgment, they reviewed the relevant public law principles and emphasised several points of general importance.

Standard of review and institutional competence

Judicial review is context-dependent and the court is entitled to subject administrative decisions to more intensive examination according to the gravity of the matter. In this case, the court accepted that arms export licences engage risks to life that entail a “rigorous and intensive standard of review” but cautioned that this was not an excuse for the court to stray into areas which are “properly the domain of the executive”. The court identified the following six factors, which “necessitate[d] that considerable respect should be accorded to the decision-maker”:

  1. Reasonable and informed minds may differ over ‘predictive’ evaluations as to future conduct, such as the risk of arms exported under licence being used in the commission of serious violations of international humanitarian law.
  2. A decision of this kind involves consideration of extremely complex facts and information (including from sensitive non-public sources).
  3. The evaluation is akin to a national security assessment, involving matters of judgement and policy, and is recognised as primarily for the executive.
  4. Decision makers’ assessments are entitled to great weight when they draw upon advice from those with “considerable specialised knowledge, experience and expertise in the field”. Here, the decision-making was informed by diplomatic and security/military expertise of a kind the court does not possess.
  5. The decision was also made on the basis of advice from government departments, ministers and officials at the highest level, including the Foreign Secretary.
  6. The court can properly take into account the expectation that those making decisions such as this should be politically responsible for them.

The judges also accentuated the limits of the court’s institutional competence where, as here, the decision under review involves the weighing of a series of complex and competing factors:

“Such self-evidently finely balanced judgements are paradigm matters for evaluation and decision by the Executive in conformity with the scheme established by Parliament. They are, of course, subject to scrutiny in the High Court, but with a suitable recognition of the institutional competence of those charged with the decision-making process…[I]n an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgements.”

Basis for rejecting the challenge

Having regard to the above considerations, the court found for SoS on all grounds. The judges considered that SoS had successfully discharged the ‘Tameside’ duty, which obliges a public body to carry out a sufficient inquiry and call all relevant considerations to its own attention before making a decision. The judges accepted SoS’s case that the Government had put in place a rigorous and comprehensive system for analysing the available evidence to determine whether a “clear risk” of serious breaches of international humanitarian law existed at any stage. The reports upon which the CAAT’s challenge relied were based on publicly available information about the conflict in Yemen. They did not reflect secret information that was available to, and had been taken into account by, SoS and his advisers. The court concluded that there was “no sustainable public law criticism” of the scope if the inquiries made on SoS’s behalf or the quality of the information available to SoS. In the court’s view the evidence “shows beyond question that the apparatus of the State, ministers and officials, was directed towards making the correct evaluations”.

The court also considered whether uncertainty and gaps in the information available to SoS rendered the decision-making irrational. It also assessed whether SoS had been irrational to conclude that there was no “clear risk” of serious breaches in this case. The judges’ conclusion was that the overall evaluation conducted by SoS had been proper, and reflected sophisticated first-hand and other evidence. SoS and his advisers had “treated the allegations drawn to their attention in the third party reports [on which the CAAT challenge now relied] seriously and as a matter of concern”. Both the open and secret evidence seen by the court demonstrated that SoS had been rationally entitled to reach the conclusions he did.