The High Court today (10 July) ruled that the government has acted lawfully in continuing to authorise transfers and sales of strategic military items to Saudi Arabia, despite concerns about how those items are being used in the on-going conflict in Yemen.
What was the issue?
As outlined in our previous update, the key issue placed under judicial review earlier this year concerned the interpretation of criterion 2(c) of the guidance which the government uses to make export licensing decisions about the export of military items. That guidance provides 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”.
The government argued that the Secretary for International Trade – who has responsibility for making licensing decisions concerning military items on advice from the FCO and MoD – acted rationally and lawfully in concluding that criterion 2(c) was not met despite available evidence about the situation in Yemen. The Campaign Against Arms Trade, which brought the judicial review as claimant, argued in the reverse.
Why did the court reach this decision?
Attaching significant weight to a wide range of MoD and FCO intelligence evidence put before it – a large proportion of which, for national security reasons, was reviewed in secret in closed sessions – the High Court found in its judgment that:
- the government had acted in accordance with criterion 2(c); and
- the government’s decision not to suspend export licences to Saudi Arabia (and continue to grant new ones) was rational and lawful.
In particular, the High Court found that the range and sophistication of the information available to the government – which had undergone a “rigorous”, “robust” and “multi-layered” process of analysis by the MoD and FCO – meant that the Secretary for International Trade could rationally, properly and justifiably rely on that evidence in making a decision, no matter how finely balanced.
The High Court was also keen to stress that decisions with national strategic significance should remain within the remit of institutions possessed with the relevant expertise to make them. The role of the court was not to frustrate or interfere with that decision-making process and it had to be especially cautious not to do so.
What happens next?
The Campaign Against Arms Trade, which brought the judicial review, has already confirmed that it plans to appeal the ruling. However, at least in the short term, the ruling provides certainty for defence businesses exporting from the UK that extant export licences will remain valid and the governmental decision-making process for future licensing decisions will remain unchanged.
It will also provide short term stability for the government, which in recent months has demonstrated its desire to use the UK defence industry to strengthen the UK economy pre-Brexit and considers the sector as being critical to securing ambitious free trade relationships with economies outside the EU post-Brexit.