Al-Haq, R (on the application of) v Secretary of State for Business and Trade

Domestic courts generally have no jurisdiction to interpret or apply unincorporated treaties without a sufficient domestic foothold. Even where such a foothold exists, the court must give very considerable weight to executive assessments involving national security, defence, international peace and security, and foreign relations. A minister’s assertion that a decision complies with international obligations does not itself create a domestic foothold. In such a context, the court may at most examine whether the minister’s view of international law is tenable. Customary international law may shape the common law only consistently with constitutional principles. The court also rejected a broad presumption that statutory powers must be exercised to avoid any significant risk of facilitating serious crime, and upheld the decision-maker’s approach to policy departure, irrationality and mandatory considerations.

The claimant challenged the Secretary of State’s September 2024 decision to suspend licences for military exports to Israel where the equipment might be used in military operations in Gaza, while excluding unidentified F-35 components from the suspension. The challenge alleged breaches of treaty and customary international law, ultra vires exercise of export-control powers, irrationality, an unlawful departure from published licensing policy, and failure to suspend all licences as a political signal.

The F-35 Programme was a highly integrated multinational defence collaboration. The Secretary of State considered that withdrawal from it would have a profound and immediate effect on international peace and security and UK defence. The court also considered the procedural history following [2025] EWHC 173 (Admin). The central issues were the justiciability of the international-law grounds and the lawfulness of the Secretary of State’s public-law decision-making.

1. Outcome. Permission to bring the judicial review claim was refused. All extant grounds of challenge failed.
2. Unincorporated treaties. Ground 8 was not justiciable. The challenge required the court to interpret and apply unincorporated treaties and to assess Israel’s conduct, the risks in Gaza and the consequences for international peace and security. The SELC did not provide a sufficient domestic foothold. The F-35 Carve Out was an exceptional decision outside the SELC framework, and the minister’s self-direction that it was consistent with international obligations did not alter that conclusion.
3. Tenability. Alternatively, if the issues were justiciable, the appropriate question was whether the Secretary of State’s view of international law was tenable. It was. The court declined to determine the disputed treaty questions definitively.
4. Customary international law. The court assumed, without deciding, that the claimed obligations might be rules of customary international law. Their content was disputed and did not satisfy the demanding requirement of widespread, representative and consistent state practice accepted as law. In any event, receiving them into the common law so as to constrain decisions reserved constitutionally to the executive would be inconsistent with constitutional principle. Ground 9 failed.
5. Criminal facilitation. R v Registrar General, ex p Smith did not establish a broad rule requiring statutory powers to be withheld whenever there was a significant risk of facilitating serious crime. The present case was factually and legally remote from that exceptional authority. The Export Control Act 2002 and Export Control Order 2008 conferred a power, not an absolute duty, to suspend licences. The decision was intra vires, and the court left any future criminal liability to prosecution authorities and criminal courts on concrete facts.
6. Irrationality and policy. The Secretary of State reasonably concluded that the UK could not unilaterally prevent UK components reaching Israel within the integrated F-35 Programme and that withdrawal would have severe defence and diplomatic consequences. The process was not irrational. The SELC expressly contemplated exceptional measures, and the importance and sensitivity of the policy and the national-security reason justified a high degree of deference. The Secretary of State was not required to undertake further calibration of the risks.
7. Option 2. The decision whether to suspend all licences as a political signal was discretionary and highly political. The matters relied on were not mandatory relevant considerations, and in any event had been considered. Ground 13 therefore failed.

This was a first-instance judicial review. Following a judgment dated 30 January 2025, reported as [2025] EWHC 173 (Admin) , permission was granted for Grounds 8 to 13 to proceed to the rolled-up hearing. The present court refused permission and rejected all those grounds.