R Campaign Against Arms Trade v The Secretary of State for International Trade Amnesty International and Others (Intervenors)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Haddon-Cave |
| Judgment Date | 10 July 2017 |
| Neutral Citation | [2017] EWHC 1754 (Admin) |
| Docket Number | Case No: CO/1306/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2017 |
[2017] EWHC 1754 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Jusice Burnett
and
Mister Justice Haddon-Cave
Case No: CO/1306/2016
and
Martin Chamberlain QC & Conor McCarthy (instructed by Leigh Day Solicitors) for the Claimant
James Eadie QC, Jonathan Glasson QC, Kate Grange, Jessica Wells & Alex Cameron (instructed by Government Legal Department) for the Defendant
Sudhanshu Swaroop QC, Nikolaus Grubeck & Anthony Jones (instructed by Debevoise & Plimpton LLP for the First to Third Intervenors
Zachary Douglas QC & Blinne Ní Ghrálaigh (instructed by Gowling WLG (UK) LLP) for the Fourth Intervenor
Angus McCullough QC & Rachel Toney (instructed by SASO) as Special Advocates
Hearing dates: 7 th, 8 th & 10 th February 2017
Approved Judgment
Lord Justice Burnett and
INTRODUCTION
The issue in this claim for judicial review is whether the Secretary of State for International Trade, who since July 2016 1 has had responsibility for licensing the export of arms, is obliged by law to suspend extant export licences to the Kingdom of Saudi Arabia and cease granting new licences, to conform with Government policy to deny such licences where there is "a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law". The claim springs from the conflict in Yemen and the border areas of Saudi Arabia. It focusses on airstrikes conducted by a coalition led by Saudi Arabia ("the Coalition") in support of the legitimate government of Yemen against the Houthi rebellion. The Claimant submits that the body of evidence available in the public domain, in particular from respected human rights organisations and international monitoring agencies, not only suggests but dictates the conclusion that such a clear risk exists. Since no other conclusion was rationally open to the Secretary of State, it is no longer lawful to license the sale of arms to Saudi Arabia.
The Secretary of State resists the Claimant's case with the aid of open evidence and argument. In addition, there is a closed case. Cranston J made a declaration pursuant to section 6 of the Justice and Security Act 2013 enabling the Secretary of State to rely upon closed material without disclosure to the Claimant. Special Advocates were appointed. There is a statutory procedure to ensure that anything relied upon as closed evidence that can be disclosed without damage to the relevant public interests is produced to the Claimant. That procedure was followed. After the conclusion of the open argument, we heard further submissions in a closed hearing attended by the Secretary of State and the Special Advocates.
This is our open judgment in which we explain our reasons for dismissing the claim.
THE LEGAL FRAMEWORK
Domestic and EU regime governing arms sales
On 26 th October 2000 the Secretary of State announced to Parliament consolidated criteria relating to export licensing decisions. They were known as the "Consolidated EU and National Arms Export Licensing Criteria". They reflected a voluntary EU Code of Conduct on Arms Exports agreed in 1998. Section 9(3) of the Export Control Act 2002 ("the 2002 Act") required the Secretary of State to "give guidance about the general principles to be followed when exercising licensing powers." By subsection (8), the Consolidated Criteria were to be treated as guidance for the purposes of section 9, unless varied or withdrawn.
The detail of controls on the export of arms, military goods and allied equipment is contained in delegated legislation, namely the Export Control Order 2008. Article 26 provides for the grant of a licence to export. Article 32 allows the Secretary of State to amend, suspend or revoke a licence already granted.
Common Position
In December 2008, the Member States of the European Union adopted European Council Common Position 2008/944/CFSP ("The Common Rules Governing the Control of Exports of Military Technology and Equipment"). The Common Position built upon the Consolidated Criteria of 1998. It sounds only in international law as an agreement between the Member States, rather than being part of EU Law. But the Secretary of State has adopted much of the Common Position as guidance under section 9 of the 2002 Act. As such, it represents the policy which the Government have stated will be applied when considering the grant of export licences. It is uncontroversial that, as a matter of public law, the Government must abide by their policy in granting or refusing export licences. It is not suggested on behalf of the Secretary of State that he has stepped outside the four corners of the policy, although legally entitled to do so, in circumstances identified in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at para 21 per Lord Dyson.
The new Consolidated Criteria, as they continued to be called for this purpose, were set out in a written statement to Parliament made on 25 th March 2014 by the Secretary of State. The statement noted the developments in international law, since the earlier iteration of the Consolidated Criteria was adopted, including the adoption by the United Nations General Assembly on 2 nd April 2013 of an international arms trade treaty. The earlier iteration contained eight criteria. The Secretary of State continued:
"The Government believe that the procedures for assessing licence applications and our decision-making processes are robust and have stood the test of time. We also believe that the eight criteria continue adequately to address the risks of irresponsible arms transfers and are fully compliant with our obligations under the EU common position and the arms trade treaty. Nevertheless it is appropriate to update these criteria in light of developments over the last 13 years. In particular: the list of international obligations and commitments in criterion 1 has been updated; there is explicit reference to international humanitarian law in criterion 2; and the risk of reverse engineering or unintended technology transfer is now addressed in criterion 7 rather than criterion 5. There are minor changes to improve the clarity and consistency of the language throughout the text. None of these amendments should be taken to mean that there has been any substantive change in policy. … As before they will not be applied mechanistically but on a case-by case basis taking account of all relevant information available at the time the licence application is assessed. While the Government recognise that there are situations where transfers must not take place, as set out in the following criteria, we will not refuse a licence on the grounds of purely theoretical risk of a breach of one or more of the criteria. In making licensing decisions I will continue to take into account advice received from FCO, MOD, DFID, and other Government Departments and agencies as appropriate."
Criterion 2
This application for judicial review is primarily concerned with Criterion 2 of the Consolidated Criteria:
" The respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law.
Having assessed the recipient country's attitudes towards relevant principles established by international humanitarian rights instruments, the Government will:
a) not grant a licence if there is a clear risk that the items might be used for internal repression;
b) exercise special caution and vigilance in granting licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the European Union;
c) 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.
For these purposes items which might be used for internal repression will include, inter alia, items where there is evidence of the use of these or similar items for internal repression by the proposed end-user, or where there is reason to believe that the items will be diverted from their stated end use or end user and used for internal repression.
The nature of the items to be transferred will be considered carefully, particularly if they are intended for internal security purposes. Internal repression includes, inter alia, torture and other cruel, inhuman and degrading treatment or punishment; summary or arbitrary executions; disappearances; arbitrary detentions; and other major violations of human rights and fundamental freedoms as set out in the relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.
In considering the risk that items might be used for internal repression or in the commission of a serious violation of international humanitarian law, the Government will also take account of the risk that the items might be used to commit gender-based violence or serious violence against women and children." (emphasis added)
The Claimant's case is that, given the available evidence, sub-criterion (c) of Criterion 2 is met.
The Consolidated Criteria also provide:
"In the application of the above criteria, account will be taken of reliable evidence, including for example, reporting from diplomatic posts, relevant reports by international bodies, intelligence and information from...
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