R (Islamic Human Rights Commission) v Civil Aviation Authority and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 23 August 2006 |
| Neutral Citation | [2006] EWHC 2465 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6504/2006 |
| Date | 23 August 2006 |
[2006] EWHC 2465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Ouseley
CO/6504/2006
MR PETER CARTER QC AND MR OSAMA DANESHYAR (instructed by Manifold and Naser Solicitors, Brimingham B20 3SX) appeared on behalf of the CLAIMANT
MR MICHAEL BELOFF QC, MR AKHIL SHAH AND MISS SARAH WILKINSON (instructed by Civil Aviation Authority) appeared on behalf of the FIRST DEFENDANT
MR CHRISTOPHER GREENWOOD QC AND MR JAMES EADY (instructed by Treasury Solicitors) appeared on behalf of the SECOND AND THIRD DEFENDANTS
This is an oral application for permission to apply for judicial review, the paper application having been adjourned to open court. The claimant also seeks interim relief and a protective costs order. I have not heard argument on those matters. They would only arise if the claimant succeeded in showing an arguable case. I have concluded that it has failed to do so by a very long way.
The application arises out of the recent conflict in the Middle East between Hizbollah, a terrorist organisation proscribed under Schedule 2 of the Terrorism Act 2000, and the state of Israel in which Lebanese and Israeli civilians have been killed. The grounds refer also to action taken by Israel in the occupied Palestinian Territories, but the focus of the proceeding is in action in Lebanon. It is worth setting out in full the decision challenged and the relief sought because they are very wide ranging indeed:
"Decision in respect of which relief is sought:
(a) The assistance provided by the Foreign and Commonwealth Office, Ministry of Defence, and the Civil Aviation Authority to the Governments of the United States of America, and Israel, permitting them to use British airspace, airports, and airbases, for the purposes of the supply of military hardware, ammunition and other munitions, to be used in the disproportionate and indiscriminate bombardment of the cities, and towns of the Republic of Lebanon, and the occupied Palestinian territories.
Relief Sought:-
1. An order of certiorari to quash the decisions of the Foreign and Commonwealth Office, the Ministry of Defence, and the Civil Aviation Authority, to provide special exemptions for the transport of extremely hazardous materials from the USA to Israel, through the UK.
2. An order of mandamus compelling the respondents to prevent any further flights using British airspace, airports and airbases, for any purpose ancillary to the furtherance of the Israeli military campaign against Lebanon and the Occupied Palestinian Territories, whether by the transport of weapons and munitions or other materials capable of use for the purposes of military campaigns.
3. An order of mandamus compelling the respondents to adhere to the government guidelines on arms exports to areas of conflict.
4. A declaration that the current assistance provided by the respondents to the governments of the USA and Israel to transport further supplies of military hardware, munitions and ammunition, violates Article 2 of the European Convention of Human Rights, and also amounts to an unlawful act by reason of section 52 of the International Criminal Court Act 2001, and section 1 of the Geneva Conventions Act of 1957. It also amounts to aiding and abetting acts of terrorism, contrary to section 1 of the Terrorism Act 2000.
5. An order of the court protecting the applicants against any costs in bringing this action on the grounds that the action is necessary in the public interest.
6. Order of disclosure of information relating to the nature and extent of the assistance provided by the defendants as well as other UK government agencies in furtherance of the continued supply of armaments by the United States of America to the state of Israel after the 12th day of July 2006.
7. Order that all further consent for flights carrying weapons from the United States to Israel, using British airspace, airports and airbases be suspended, pending the final outcome of the judicial proceedings.
8. Further or any relief."
I turn, briefly, to the legal framework within which two of the respondents consent to the use of UK airspace and airports for the carriage of munitions of war.
The CAA is a body corporate which now operates under the Civil Aviation Act 1982. The relevant functions were conferred on it by the Crown under the Air Navigation Order 2005 Statutory Instrument 1970. This Order in Council gives effect to obligations accepted by the Crown under the Chicago Convention. Section 3(c) of the Civil Aviation Act includes among the CAA's functions the functions conferred under the Air Navigation Order. Section 4 casts the functions in broad terms, relating, amongst other matters, to furthering the interests of the users of air transport services.
Also relevant to the CAA's position is section 6 of that Act which provides for:
"… the Secretary of State … [to] give such directions of a general character as to the performance of its functions as he thinks it appropriate to give in the interests [amongst other matters] of national security."
He can give the CAA directions to do or to refrain from doing a particular thing in the same interests, that of national security, or in connection with any matter which appears to him to affect the relations of the United Kingdom with a country or territory outside the United Kingdom. No directions relevant to any issues here have been given.
There are two forms of control relevant to the carriage of munitions of war in UK airspace or landing at UK airports; those which govern munitions of war specifically and those which govern dangerous air cargo which covers some, but not all, munitions of war.
Article 6(9)(1) of the Air Navigation Order prohibits the carriage of munitions of war unless permitted by the CAA. The purpose of this legislation is so that the CAA is notified by and gives approval to the operator to carry munitions of war. No considerations are specifically identified as relevant to the exercise of that power by the statute. The CAA takes into account the identity of the operator, the type of munitions of war and any requirement that may exist for a valid export licence. Such permissions as are given by the CAA can either be specific for a particular journey or of unlimited duration. For the latter there is no specific requirement that the destination or intended or probable or possible use of the consignment be taken into account. Indeed, the CAA may not know of the destination, although the permissions granted here list the types of munition of war which can be carried. Indefinite duration permissions are revocable and are capable of being suspended as well. Such discretionary powers would in practice be exercised on the basis of the same considerations as lie behind the grant of permission in the first place.
The carriage by air of dangerous cargo is regulated by the Air Navigation (Dangerous Goods) Regulations 2002 SI 2786. These prohibit any aircraft carrying dangerous goods unless the operator is approved under those regulations and the cargo is carried in accordance with its technical requirements. The purpose of those provisions is to ensure that the cargos are carried safely in flight and in transit on the ground for the benefit of all air transport users. Some types of goods, including the bombs and fuses particularly at issue here, are forbidden from carriage by air unless they have been exempted from that prohibition by reference to particular circumstances, notably, for these purposes, when other forms of transport are inappropriate.
The claimant did not identify any actual flights in its grounds carrying the munitions of war about which complaint is made, but the respondents have helpfully assisted. Kalitta Air LLC and Atlas Air Inc, US companies, have been involved in the carriage of munitions of war to Israel, transitting in UK airport and using United Kingdom airspace. The two companies were each granted indefinite permission to carry particularised munitions of war in September 2005 before the current conflict began. Both were granted permission to carry dangerous goods: Kalitta in March 2003 and Atlas in December 1998. Atlas was granted two exemptions, on 27th July 2006, by the CAA under the Dangerous Goods Regulations in respect of two cargoes of bombs and fuses believed to be by the claimant of a type colloquially known as "Bunker Busting Smart Bombs". These were permitted transit through the UK's airspace and a stop at Prestwick in Scotland. The exemptions were granted because air carriage was seen as the only appropriate form of transport, as the most secure form and the least liable to be at risk of unlawful seizure. Kalitta has not sought exemptions and it appears that it may have carried goods requiring such an exemption. The CAA is considering what steps it should take in the light of that.
It is now accepted by the claimant that the goods carried were in transit and not subject to export controls. There are certain munitions of war, notably landmines, which cannot be carried even in transit. Those are not listed in either the Air Navigation Order permission or in the permission to carry dangerous goods, nor, so far as Atlas was concerned, in the exemption. The suggestion that because Kalitta did not seek an exemption it is not known whether the cargo included landmines and therefore it might have...
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Acts of War or Acts of Terrorism?
...1 contrary to thedecision of the High Court in R (on the application of Islamic Human RightsCommission) v Civil Aviation Authority [2006] EWHC 2465 (Admin) inwhich Ouseley J cautioned against too wide a reading of s. 1. This caseconcerned an action brought to prevent the shipping of militar......