Saudi arms trading

There was no clear risk that there might be serious violations of international humanitarian law, in its various manifestations, such that United Kingdom’s arms sales to Saudi Arabia should be suspended or cancelled under government policy. Accordingly, the Divisional Court dismissed the claimant’s application for judicial review of the defendant Secretary of State’s continuing failure to suspend export licences and to continue to grant new licences.

In March 2015, a coalition of nine states, led by Saudi Arabia, responded to a request for assistance by the President of Yemen and commenced military operations against the Houthis in Yemen. In January 2016, the claimant wrote a letter before claim, alleging that the United Kingdom government was acting unlawfully in continuing to grant export licences, and in not suspending extant licenses, for the supply of UK-produced military equipment to Saudi Arabia that could be used in Yemen. It issued judicial review proceedings, challenging the defendant Secretary of State’s continuing failure to suspend export licences for the sale or transfer of arms and military equipment to Saudi Arabia for possible use in the conflict in Yemen, and the decision to continue to grant new licences of that nature.

The claimant contended that: (i) the Secretary of State had failed to ask the correct questions and make sufficient enquiries; (ii) the Secretary of State had wrongly failed to suspend arms sales to Saudi Arabia; and (iii) the Secretary of State’s conclusion that criterion 2c of the Consolidated EU and National Arms Export Licensing Criteria (the consolidated criteria), which provided that  a licence would not be granted if there was clear risk that the arms might be used in the commission of serious violations of international humanitarian law (IHL), had not been satisfied had been irrational.

The application would be dismissed.

(1) The reality of the position was that the Secretary of State had available to him and his advisers a significant amount of information relating to the conflict in Yemen and the conduct of Saudi Arabia as part of the coalition. There was no sustainable public law criticism of the scope of the inquiries made on his behalf or the quality of the information available to him. The evidence showed beyond question that the apparatus of the state, ministers and officials, had been directed towards making the correct evaluations for the purposes of the consolidated criteria (see [192] of the judgment).

(2) The Secretary of State had been reasonably able: (i) to assess the gaps in his knowledge and ‘known-unknowns’ against what information and materials he had had and how critical or not the gaps had been; (ii) to test and assess the reliability of the United Nations’ and non-governmental organisation’s findings against the other sources of information at his disposal; and (iii) to assess the significance of his knowledge, or lack of it, as to Saudi Arabian investigations into individual incidents. Further, those matters had been factors in an overall assessment to be made by the Secretary of State in relation to criterion 2c of the consolidated criteria in the light of the wide range of sophisticated first-hand and other evidence available to him. In those circumstances, the Secretary of State’s decision not to suspend at any stage could not be said to have been irrational or unlawful (see [198] of the judgment).

(3) The claimant and the interveners placed heavy reliance on the numerous third-party reports of 2016 civilian casualties and allegations of breaches of IHL by the coalition in Yemen. However, the third-party reports did not raise any legal presumption that criterion 2c of the consolidated criteria was triggered, although their content had to be properly considered in the overall evaluation.

Further, in an area where the court was 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 did have the relevant expertise to make the necessary judgments.

The open and closed evidence demonstrated that the Secretary of State had been rationally entitled to conclude that: (i) the coalition had not deliberately been targeting civilians; (ii) Saudi processes and procedures had been put in place to secure respect for the principles of IHL; (iii) the coalition had been investigating incidents of controversy, including those involving civilian casualties; (iv) the Saudi authorities had throughout engaged in constructive dialogue with the UK about both its processes and incidents of concern; (v) Saudi Arabia had been and remained genuinely committed to compliance with IHL; and (vi) there was no clear risk that there might be serious violations of IHL, in its various manifestations, such that UK arms sales should be suspended or cancelled under criterion 2c of the consolidated criteria (see [207], [209], [210] of the judgment).

Martin Chamberlain QC and Conor McCarthy (instructed by Leigh Day Solicitors) for the claimant.

James Eadie QC, Jonathan Glasson QC, Kate Grange, Jessica Wells and Alex Cameron (instructed by the Government Legal Department) for the Secretary of State.

Sudhanshu Swaroop QC, Nikolaus Grubeck and Anthony Jones (instructed by Debevoise & Plimpton LLP) for Amnesty International, Human Rights Watch and Rights Watch (UK), as first to third intervenors.

Zachary Douglas QC and Blinne Ní Ghrálaigh (instructed by Gowling WLG (UK) LLP) for Oxfam, as fourth intervenor.

Angus McCullough QC and Rachel Toney (instructed by the Special Advocates’ Support Office) as Special Advocates.

Karina Weller - Solicitor (NSW) (non-practising).