The Queen (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lord Justice Irwin,Lord Justice Singh |
| Judgment Date | 20 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T3/2017/2079 |
| Date | 20 June 2019 |
[2019] EWCA Civ 1020
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Irwin
and
Lord Justice Singh
Case No: T3/2017/2079
and
and
Martin Chamberlain QC and Conor McCarthy (instructed by Leigh Day) for the Appellant
Sir James Eadie QC, Jonathan Glasson QC and Jessica Wells (instructed by the Government Legal Department) for the Respondent
Jemima Stratford QC, Nikolaus Grubeck and Anthony Jones (instructed by Deighton Pierce Glynn) for the First Interveners (written submissions only)
Gerry Facenna QC and Julianne Kerr Morrison (instructed by Gowling WLG (UK) LLP) for the Second Interveners (written submissions only)
Angus McCullough QC and Rachel Toney (instructed by the Special Advocates' Support Office) appeared as Special Advocates
Hearing dates: 9, 10 and 11 April 2019
Sir Terence Etherton MR, Lord Justice Irwin and
This appeal concerns the lawfulness of the grant by the UK Government of export licences for the sale or transfer of arms or military equipment to the Kingdom of Saudi Arabia, for possible use in the conflict in Yemen.
It is an appeal from the order dated 10 July 2017 of Burnett LJ and Haddon-Cave J, sitting in the Divisional Court of the Queen's Bench Division, dismissing the claim of the appellant, Campaign Against Arms Trade (“CAAT”), for judicial review of the failure of the respondent, the Secretary of State for International Trade, to suspend extant licences and of the Secretary of State's decision to continue to grant such licences.
The appeal has proceeded with both open and closed material and was heard by us in both open and closed sittings. This is the open judgment of the court.
Background – the conflict in Yemen
The following is a very brief summary of the factual background relating to the conflict in Yemen, sufficient to understand the context for this appeal. It is largely taken from the more full and detailed account in the judgment of the Divisional Court, for which we are grateful.
Saudi Arabia and Yemen are contiguous and share a 1,800 km border. Since early 2015 Yemen's capital city, Sana'a, and parts of central and southern Yemen have been in the control of Houthi rebels backed by former Republican Guard Forces loyal to former President Saleh. The Houthi are a Shia-Zaydi movement from the north of Yemen.
On 24 March 2015 the President of Yemen, President Hadi, wrote to the UN requesting support “by all necessary means and measures, including military intervention, to protect Yemen and its people from continuing aggression by the Houthis”. A further letter was sent on 26 March 2015 from the Gulf Cooperation Council countries endorsing President Hadi's request.
On 25 March 2015 a coalition of nine states led by Saudi Arabia (Egypt, Morocco, Jordan, Sudan, the United Arab Emirates, Kuwait, Qatar and Bahrain) responded to a request for assistance by President Hadi and commenced military operations against the Houthis in Yemen (“the Coalition”).
On 14 April 2015 the UN passed Security Council Resolution 2216 (2015) affirming the legitimacy of President Hadi and condemning the unilateral actions taken by the Houthis.
Hostilities took place during 2015 and 2016, despite numerous ceasefire attempts, and were continuing at the date of the judicial review hearing. Coalition military operations took the form primarily of airstrikes led by Saudi Arabia against the Houthis, together with some ground operations. The Saudis reported numerous cross-border incursions and missile attacks by the Houthis, including the use of SCUD missiles. There were reports of attacks by Houthi forces on Coalition shipping in the Red Sea. As at the date of the judicial review hearing, Houthi forces continued to occupy Sana'a, and ground fighting remained significant in the Northern Provinces and around Taizz. The Saudis had by then reported 745 Saudi soldiers and border guards killed along the Southern front, and over 10,000 injured since March 2015.
Terrorist organisations, such as Al-Qaeda in the Arabian Peninsula and Daesh (also known as “ISIS”), have taken advantage of the on-going instability and ungoverned space in Yemen. This has complicated the picture and led to increased anti-terror operations in the region led by US forces.
CAAT submits that there is a large body of evidence which demonstrates overwhelmingly that Saudi Arabia has committed repeated and serious breaches of international humanitarian law (“IHL”) during the conflict in Yemen. CAAT claims, in particular, that Saudi Arabia has committed indiscriminate or deliberate airstrikes against civilians, including airstrikes which have used “cluster” munitions, and which have targeted schools and medical facilities. CAAT's evidence runs to many hundreds of pages, and includes reports from the UN, the European Parliament, the Council of the EU, the International Committee of the Red Cross, Médecins Sans Frontières, Amnesty International, Human Rights Watch, Parliamentary committees, and the press. Some of that material is set out in paragraphs [64] to [79] of the judgment of the Divisional Court. Additional evidence of the Interveners to similar effect is set out in paragraphs [81] to [85] of the judgment of the Divisional Court. We refer later in this judgment to some of the evidence in more detail.
The legal context
The export of arms and military equipment from the UK to Yemen is regulated by the Export Control Act 2002 (“the 2002 Act”). Section 1(1) of the 2002 Act provides that the Secretary of State may by order make provision for or in connection with the imposition of export controls in relation to goods of any description. Section 5(2), as amended, provides that controls may be imposed for the purpose of giving effect to any EU provision or other international obligation of the UK. Section 9(2) provides that the Secretary of State may give guidance about any matter relating to the exercise of any licensing power or other functions conferred by a control order, and section 9(3) provides that the Secretary of State must give guidance about the general principles to be followed when exercising any such licensing power.
Article 3 in Part 2 of the Export Control Order 2008 S.I. 2008/3231 provides that, subject to (among others) Article 26, no person shall export military goods or transfer military software or technology by electronic means. Article 26(1) provides that nothing in (among others) Part 2 prohibits an activity that is carried out under the authority of a UK licence. Article 32(1) provides that the Secretary of State may by notice amend, suspend or revoke a licence granted by the Secretary of State.
The EU Common Position
In December 2008 the Member States of the EU adopted the Council Common Position 2008/944/CGSP of 8 December 2008 “defining common rules governing control of exports of military technology and equipment” (“the EU Common Position”). Article 1.1 provides that each Member State shall assess export licence applications made to it for items on the EU Common Military List on a case-by-case basis against the criteria of Article 2. Article 1.2 provides that those export licence applications include applications for physical exports and applications for licences for any intangible transfers of software and technology by means such as electronic media, fax or telephone.
For the purpose of these proceedings and this appeal, the relevant criterion in Article 2 is that set out in Article 2.2 (“Criterion 2”) as follows, so far as relevant:
“Criterion Two: 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, Member States shall:
(a) …;
(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 United Nations, the European Union or by the Council of Europe;
…
— Having assessed the recipient country's attitude towards relevant principles established by instruments of international humanitarian law, Member States shall:
(c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.”
Article 10 provides that:
“While Member States, where appropriate, may also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, these factors shall not affect the application of the above criteria.”
Article 13 provides that “the User's Guide to the European Code of Conduct on Exports of Military Equipment” shall serve as guidance for the implementation of the EU Common Position.
The Consolidated Criteria
On 24 March 2014 the Secretary of State set out in a written statement to Parliament what were described as “Consolidated EU and National Arms Export Licensing Criteria” (“the Consolidated Criteria”). These were based on the EU Common Position. The written statement said that it was guidance given under the 2002 Act s.9. Criterion 2 of the Consolidated Criteria is the relevant criterion for the...
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