The King on the Application of Al-Haq v Secretary of State for Business and Trade

Hearing dates: 13, 14, 15 & 16 May 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on Monday 30 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice Males AND

Introduction

On 2 ^nd September 2024 the Defendant, the Secretary of State for Business and Trade (‘the Secretary of State’), decided to suspend licences authorising the export of items that might be used in carrying out or facilitating Israeli military operations in the conflict in Gaza. He did so explicitly because the Government had formed the view that Israel was not committed to compliance with international humanitarian law (‘IHL’) in the conflict in Gaza and that there was therefore a clear risk that such items might be used in that conflict to commit or facilitate a serious violation of IHL. However, the Secretary of State excluded from that suspension licences for the export of components for F-35 combat aircraft which could not be identified as destined for Israel. In this claim for judicial review the Claimant, supported by the Interveners, challenges the lawfulness of this exclusion, which has been referred to as the ‘F-35 Carve Out’.

In reaching these decisions, together referred to as ‘the September Decision’, the Secretary of State received advice from the Defence Secretary and the Foreign Secretary. In short, the advice of the Defence Secretary, set out in a letter dated 18 ^th July 2024, was that:

(1) the multinational F-35 joint strike fighter programme (‘the F-35 Programme’ 1) is significantly dependent on the United Kingdom as the largest national provider of component parts outside the United States;

(2) it was not currently possible to suspend licensing for export of F-35 components for use by Israel without having an impact on the entire F-35 Programme;

(3) a suspension of licensing for all F-35 nations would have a profound and immediate impact on international peace and security, would undermine US confidence in the UK and NATO at a critical juncture, would seriously undermine the credibility of the UK as a trusted partner on the international stage, and would undermine a key capability allowing the UK and its closest allies and partners to address current security challenges.

Again in short, the advice of the Foreign Secretary, set out in a letter dated 29 ^th August 2024, was that:

(1) Israel was not committed to compliance with IHL in the conflict in Gaza;

(2) there was therefore a clear risk that military equipment exported to Israel which might be used in that conflict might be used to commit or facilitate a serious violation of IHL; and

(3) licences of such equipment should therefore be suspended; but

(4) because of the critical impact on international peace and security likely to be caused by suspending the export of components from the United Kingdom to the F-35 Programme, an exception should be made for the export of such components save for those which could be identified as destined for Israel.

The September Decision was set out in a letter dated 2 ^nd September 2024 (‘the Decision Letter’). Referring to the F-35 Carve Out, it stated the Secretary of State's view that the advice of the Defence Secretary and the Foreign Secretary that suspending F-35 licences ‘would have a critical impact on international peace and security, including NATO's defence and deterrence … provides justification to take exceptional measures to avoid these impacts, consistent with the UK's domestic and international legal obligations’.

The Secretary of State announced this decision to Parliament on the same day in a written statement. He explained that the F-35 Carve Out was ‘in line with the Written Ministerial Statement that issued the Strategic Export Licensing Criteria 2 on 8 December 2021, which provided the application of the Criteria would be without prejudice to the application to specific cases of specific measures as may be announced to Parliament from time to time’.

Also on 2 ^nd September 2024, an oral statement to Parliament was made by the Foreign Secretary. Referring to the F-35 Carve Out, the Foreign Secretary described the F-35 Programme as ‘crucial to wider peace and security’ and said that ‘the effects of suspending all licences for the F-35 programme would undermine the global F-35 supply chain that is vital for the security of the UK, our allies and NATO’.

The Claimant, a non-governmental human rights organisation established in 1979, contends that the F-35 Carve Out was unlawful. There are five grounds of challenge, as follows:

(1) Ground 8: the Defendant was wrong (i) to assess that continued exports of military equipment to Israel would be compatible with Criterion 1 of the SELC, which requires ‘respect for the UK's international obligations and relevant commitments' and (ii) in his self-direction that the F-35 Carve Out was consistent with the UK's … international law obligations’. In so concluding, the Secretary of State misunderstood and misapplied:

(A) Common Article 1 of the Geneva Conventions 3, ratified by the UK on 29 ^th September 1957;

(B) Articles 6 and 7 of the Arms Trade Treaty, ratified by the UK on 2 ^nd April 2014;

(C) Article I of the Genocide Convention 4, to which the UK acceded on 30 ^th January 1970; and

(D) rules of customary international law reflected in Articles 16 and 41 of the International Law Commission's Articles on State Responsibility 5.

(2) Ground 9: the Defendant was wrong to conclude that the F-35 Carve Out was ‘consistent with the UK's domestic law obligations’. In fact it was not because it breached three rules of customary international law which either have been or should be received into the common law, namely the obligations to ensure respect for the Geneva Conventions, to prevent genocide and not to facilitate internationally wrongful acts.

(3) Ground 10: the F-35 Carve Out was ultra vires the Defendant's powers under the Export Control Act 2002 because it gave rise to a significant risk of facilitating criminal offences under the Geneva Conventions Act 1957 and the International Criminal Courts Act 2001.

(4) Ground 11: the F-35 Carve Out was irrational (as a matter of process irrationality) because the reasoning relied on in support of it suffers from a ‘logical error or critical gap’.

(5) Ground 12: the Secretary of State erred in his approach to the assessment of whether there was good reason to depart from his published policy on the export of arms. In particular, in balancing the risks of continuing to export F-35 parts against the risks of suspending those exports, he unreasonably limited his consideration of the former to the existence of unspecified serious violations of IHL without making any attempt to assess the nature, extent or potential gravity of these risks, while adopting a different approach in relation to his consideration of the risks of suspending licences.

The Claimant also challenges a further aspect of the September Decision ( Ground 13), contending that it was unlawful to limit the suspension of arms exports to Israel to arms which might be used in the conflict in Gaza, and that all such exports should be suspended.

These challenges were the subject of a rolled up hearing between 13 ^th and 16 ^th May 2025. They are concerned with the lawfulness of the F-35 Carve Out as an element of the September Decision. This means that although there have been further developments in the conflict in Gaza since September 2024, and further public statements by His Majesty's Government (including a statement in Parliament by the Foreign Secretary on 20 ^th May 2025, after the hearing before us had concluded, that trade talks with Israel were being suspended), those further developments are not relevant to the lawfulness of the September Decision.

It is apparent from what we have said already that the claim for judicial review faces a high hurdle. It would require this court to conclude that a decision, the F-35 Carve Out, was unlawful, when that decision was considered by the Defence Secretary and the Foreign Secretary who are constitutionally accountable to Parliament, to be ‘vital’ for the security of the UK. For the reasons which follow in this OPEN judgment, supplemented by a short CLOSED judgment, we have concluded that the claim cannot surmount this hurdle and that permission to bring a claim for judicial review must be refused.

Procedural background

The claim form was filed on 7 ^th December 2023 as a challenge to...