Campaign Against Arms Trade, R (On the Application Of) v The Secretary of State for International Trade

An assessment of whether arms exports present a clear risk of use in serious violations of international humanitarian law must rationally address the recipient’s past and present record. Where credible evidence raises a possible pattern of past violations, the decision-maker must attempt an overall assessment, although no conclusion is required for every incident.

The assessment remains prospective and predictive. Past violations do not dictate its result, but omitting their assessment may prevent rational evaluation of assurances, training, remedial measures and the recipient’s capacity to comply. Non-binding guidance does not require every suggested question to be asked serially. The choice of inquiry attracts considerable respect, but remains reviewable for irrationality.

The appellant sought judicial review of the continued grant, and non-suspension, of licences for military exports to Saudi Arabia for possible use in Yemen. It argued that the Secretary of State’s assessment under Criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria was legally deficient.

The Divisional Court dismissed the claim in [2017] EWHC 1754 (Admin). Permission to appeal was granted on grounds concerning the treatment of evidence of past violations of international humanitarian law, three questions in the User’s Guide, and the meaning of “serious violations”. The central issue was whether the Secretary of State could rationally assess the risk of future serious violations without attempting an assessment of whether the Coalition had committed a pattern of violations in the past.

1. Appeal allowed on Ground 1 and dismissed on all other grounds. The matter was remitted to the Secretary of State for reconsideration in accordance with the correct legal approach.

2. Judicial review does not determine the merits of governmental policy. The court nevertheless must correct an error of law. Irrationality sets a deliberately high threshold, particularly where an assessment is predictive, draws on sensitive diplomatic and military information, and lies within executive expertise. The court must accord considerable respect to the decision-maker, but that respect does not remove judicial supervision.

3. The Secretary of State acted irrationally by making no assessment, even overall, of whether the Coalition and Saudi Arabia had a historic pattern of violations of international humanitarian law. Criterion 2c and paragraph 2.13 of the User’s Guide made the recipient’s past and present record an obviously relevant consideration. It was unnecessary to determine every alleged incident, but an assessment could and should have been attempted for many incidents. Without it, the Secretary of State could not rationally evaluate whether assurances, training, support and remedial measures were effective, or whether Saudi Arabia had the intention and capacity to comply in future. A finding of past violations would not compel any particular conclusion about future clear risk.

4. The User’s Guide shared best practice and did not constitute binding instructions. It neither required every listed question to be asked nor required them to be considered serially. The Secretary of State was therefore not required to determine specifically whether Saudi Arabia had relevant legislation, accountability mechanisms and an independent judiciary. The significance of those matters was fact-sensitive and fell within the Secretary of State’s broad area of rational judgment.

5. “Serious violations” of international humanitarian law are broader than grave breaches and war crimes. The Divisional Court and the Secretary of State had not improperly confined the concept to deliberate conduct or individual criminal responsibility. A consistent pattern of non-deliberate incidents with a common cause and no remedial action could amount to a breach. The court declined to formulate an abstract definition because the concept is fact-sensitive and Criterion 2c requires a prospective assessment of future risk.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 1020, the appeal was allowed on Ground 1 and dismissed on all other grounds. The matter was remitted to the Secretary of State for reconsideration.

2. High Court, Divisional Court: In [2017] EWHC 1754 (Admin), Burnett LJ and Haddon-Cave J dismissed the judicial review claim, holding that the Secretary of State’s inquiry and continuing licensing decisions were rational and lawful.