Campaign Against Arms Trade, R (on the application of) v Secretary of State for International Trade

In reviewing a predictive assessment under Criterion 2c of the Consolidated Criteria, the court must decide whether the decision was irrational, not whether another evaluative method or conclusion would have been preferable. A clear risk means a concrete risk supported by evidence capable of meaningfully informing the assessment. Past incidents assist only insofar as they reveal an unaddressed systemic weakness affecting future willingness or capacity to comply with international humanitarian law. Where information is insufficient to form a meaningful view of an alleged past breach, excluding the incident from the breach analysis may be rational. The assessment remains holistic and may take account of assurances, training, investigations, expertise, access to information and evidence of improvement.

The claimant challenged the Secretary of State’s 7 July 2020 decision to continue granting licences for the export of arms and military equipment to Saudi Arabia for use in the Yemen conflict. The challenge followed an earlier claim concerning the 2015 decision. That claim was dismissed by the Divisional Court in [2017] EWHC 1754 (Admin), but the Court of Appeal allowed the appeal on one ground in [2019] EWCA Civ 1020, holding that the Secretary of State had to attempt to assess whether past incidents involved breaches of international humanitarian law.

The present claim alleged irrationality in the method and conclusions of the new IHL analysis, including the treatment of insufficient information, the absence of an alleged pattern, the meaning of serious violations, and impunity. The central issue was whether the Secretary of State’s evaluation that there was no clear risk of future serious violations was rationally open to her.

1. Disposition. The claim was dismissed. All four grounds of challenge failed.
2. Applicable review. Criterion 2c involved a predictive evaluation of future risk in a complex and changing conflict, based on diverse information and specialist diplomatic and military advice. The decision was therefore reviewable only on rationality grounds, with considerable respect owed to the executive. The court could not substitute its own assessment of individual incidents or the merits of the policy.
3. Criterion 2c assessment. The central question was whether Saudi Arabia had the intention and capacity to comply with international humanitarian law. The assessment was properly holistic. It could include the IHL analysis, assurances, training and support, Saudi responses to concerns, the development of JIAT, trends in credible allegations, privileged access to information and evidence of improvement.
4. Meaningful evidence and past incidents. A clear risk connoted a concrete risk supported by evidence. The mere fact of civilian casualties or damage to civilian or humanitarian objects did not establish a possible breach where there was insufficient information to assess what had occurred and why. Past breaches were relevant principally if they revealed an unaddressed systemic weakness undermining future compliance.
5. IHL analysis and pattern. Treating possible breaches as established breaches for the purpose of assessing patterns was rational, while retaining an evaluative assessment of their likelihood, seriousness and significance. The small number and disparate nature of the possible breaches, alongside evidence of improvement and remedial action, rationally supported the conclusion that no concerning systemic pattern existed. The “pattern emails” did not disclose circular reasoning.
6. Other grounds. The focus on fixed-wing aircraft and four principal IHL principles was not irrational in the circumstances. Criterion 2b added nothing material because the process had involved anxious and rigorous scrutiny. The Court of Appeal’s earlier reasoning that the Secretary of State was not required to ask three specific questions concerning legislation, accountability mechanisms and an independent judiciary applied equally to the new decision. No abstract definition of “serious violations” was appropriate. The court made no concluded determination whether negligent failings could amount to a serious violation.

The judgment described an earlier challenge in the same litigation:

• Divisional Court: the challenge to the 2015 decision was dismissed in [2017] EWHC 1754 (Admin).
• Court of Appeal: the appeal was allowed on one ground in [2019] EWCA Civ 1020, requiring an attempt to assess whether past incidents involved breaches of international humanitarian law.
• High Court (Administrative Court): the present challenge to the 2020 decision was dismissed.