On 20 June 2019, the Court of Appeal (CoA) upheld an appeal by the Campaign Against Arms Trade (CAAT) against the Secretary of State for International Trade (the Secretary) in connection with its claim for the judicial review of licensing decisions relating to military exports to Saudi Arabia which might be used in the conflict in Yemen. The judgment did not concern whether the licensing decisions themselves were right or wrong but rather whether the process used to reach those decisions was correct. Specifically, the CoA found that the Secretary had failed to determine whether there had been a historic pattern of breaches of international humanitarian law (IHL) by Saudi Arabia and its coalition partners. The Secretary has been directed to reconsider the licensing decisions in accordance with the correct legal approach.
The CoA’s decision does not automatically revoke or suspend any existing licences. Following the decision, the Secretary announced that new licences will not be granted for exports to Saudi Arabia and its coalition partners which might be used in the conflict in Yemen until the government has considered the implications of the decision. The Secretary also announced his intention to seek permission to appeal the decision of the CoA to the Supreme Court. On 8 July, it was reported that the Secretary had applied for a stay of the CoA's judgment pending the appeal (meaning that its effect would be suspended for that period of time).
Background On 9 December 2015, CAAT commenced judicial review proceedings challenging the Secretary’s decision (i) not to suspend existing licences for the sale or transfer of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen; and (ii) to continue to grant new such licences. On 10 July 2017, the Divisional Court dismissed CAAT’s claim.
On 4 May 2018, CAAT was granted leave to appeal to the CoA on the following three grounds (Grounds 1, 2 and 4):
- Ground 1: The Secretary acted irrationally by failing to reach a view on whether there had been a pattern of IHL violations by Saudi Arabia and its coalition partners in Yemen.
- Ground 2: The Secretary failed to consider certain questions raised by the User's Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment (User’s Guide), thereby breaching a common law duty to take reasonable steps to educate himself in making the licensing decisions.
- Ground 4: The Divisional Court failed to rule on the meaning of the term “serious violations” of IHL, and in particular whether it is synonymous with the more serious “war crimes” or “grave breaches” of IHL. This was important because the Secretary had equated all of these terms, which CAAT objected to.
Court of Appeal decision The appeal was heard between 9-11 April 2019, and on 20 June, the CoA handed down its judgment1, allowing the appeal on Ground 1, but dismissing it on all other grounds. In short, the CoA concluded that the decision-making process for failing to suspend existing licences and for continuing to grant new licences for the sale or transfer of arms or military equipment to Saudi Arabia was irrational and therefore unlawful. As a result, the Secretary was directed to reconsider these licensing decisions in accordance with the correct legal approach.
The central issue of Ground 1 of the appeal concerned the application of Criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria (the Consolidated Criteria) in the context of military exports to Saudi Arabia and the conflict in Yemen, which states that the Government will “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.”
CAAT argued that where there is a body of independent evidence demonstrating a pattern of IHL violations (some of which were “striking”), rationality required the Secretary to review the evidence and reach a view as to whether a pattern of violations occurred. Such a pattern would be “obviously and centrally” relevant to whether there would be a “clear risk” of future IHL violations. CAAT submitted that such an assessment had not been made, which was an error in law.
The CoA noted the Divisional Court's findings that the Ministry of Defence (MoD) maintained a “tracker” of alleged IHL breaches and produced periodic “IHL Updates”, and that it had a wide range of information available in order to assess such incidents. The CoA also accepted the Divisional Court's finding that the MoD and Foreign and Commonwealth Office's ongoing analysis of alleged violations was “rigorous and robust”, “multi-layered” and “carried out by numerous expert government and military personnel” [at para 136].
The CoA accepted CAAT's argument that “the question of 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” [at para 138]. And notwithstanding the Government's attention to this issue, the CoA ultimately found that it had made no assessment of whether IHL breaches had actually occurred. As a result, “it was irrational and therefore unlawful for the Secretary of State to proceed as he did” [at para 145].
The CoA dismissed Ground 2 fundamentally because the User's Guide represents best-practice guidance, and the Secretary was not under an obligation to ask and answer all the questions which the User's Guide raises in relation to Criterion 2 – especially as the particular questions highlighted by CAAT focussed on individual liability for IHL violations and not Saudi Arabia's record as a state. The CoA dismissed Ground 4 on the basis that the Divisional Court itself did not equate “serious violations” of IHL with “grave breaches” or “war crimes”. It took the view that the Government's “IHL Updates” included incidents that would not rise to the level of grave breaches or war crimes, and this was evidence that the Secretary had not erred in his approach.
What are the implications?
In a statement to Parliament delivered on 20 June 2019, the Secretary stated that “this judgment is not about whether the Government made the right or wrong decisions, but is about whether the decision-making process was rational… changing the process as set out by the Court does not necessarily mean any of the decisions would be different.”2 The Secretary is therefore reconsidering the decisions in accordance with the legal approach prescribed by the Court.
The main impacts on exporters are as follows:
- Extant licences: Extant licences (i.e. those granted before the judgment) relating to the export of arms and military equipment to Saudi Arabia are not immediately affected by the decision and exporters may continue to export under those licences. However, the Secretary is required to reconsider the analysis upon which the grant of those licences was based. Due to their fact-specific nature, the re-evaluation of export licences will likely require a case-by-case analysis, taking into account the various relevant licensing criteria. Some licences may be suspended or revoked, while others may be upheld following reconsideration.
- New licences: While the review of extant licences is ongoing, the Secretary has announced that the Government will not grant any new licences for exports to Saudi Arabia and its coalition partners (UAE, Kuwait, Bahrain and Egypt) which might be used in the conflict in Yemen. The Government is developing a new licensing process in connection with these exports. We understand informally that it could take months for this process to go live. There will also be an impact on licensing for other countries where Criterion 2c may be relevant.
- Open general export licences (OGELs): The Secretary has stopped new registrations for six OGELs that authorise exports of military items to Saudi Arabia. Exporters who have already registered for those OGELs may continue to use them, including to export to Saudi Arabia and its coalition partners, subject to the terms and conditions of the licences. The Department for International Trade has stated that arrangements will be put in place for future registrations for other destinations permitted by the affected OGELs.3