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Farewell to Arms? The Legality of Arms Sales to Saudi Arabia

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About The Author

Peter Lennon (Joint Editor-in-Chief )

Peter Lennon recently completed the LPC at the University of Sheffield, and is a future trainee of Mills & Reeve LLP. Before law, Peter studied History at Selwyn College, Cambridge. His main areas of interest are corporate law, administrative law, and legal policy. Outside the law, Peter enjoys writing, cooking, and pretending to know about football.

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Every gun that is made, every warship launched, every rocket fired, signifies in the final sense a theft from those who hunger and are not fed, those who are cold and not clothed.

Dwight D. Eisenhower

The UK’s relationship with Saudi Arabia is, to put it mildly, a contentious issue. Proponents are likely to point out that the Gulf state is a key defence partner in a fractious region of the world and a major client for British companies manufacturing arms and aircraft. Figures cited by The Independent estimate that the UK has made £3.6 billion worth of arms sales since the beginning of the conflict in Yemen alone. Detractors, meanwhile, are just as likely to note Saudi Arabia’s appalling human rights record (as profiled by Human Rights Watch), and its role in both regional conflicts and international terror.

This relationship has caused legal issues for the British government in the past. The case of R (Corner House Research) v Director of the Serious Fraud Office [2008] concerned an investigation into bribery in a sale of fighter jets to Saudi Arabia, which was abruptly ended in response to an alleged threat by a Saudi prince. While the judges in Corner House Research made an admirable effort to restrict the case to matters of judicial review, the proceedings tacitly acknowledged some of the political difficulties in conducting business with the kingdom while also attempting to stand by British values such as the rule of law or respect for human rights.

In October, the former Defence Secretary Sir Michael Fallon, stated that criticism of Saudi Arabia was “not helpful” as he negotiated the sale of Typhoon fighter jets to the state. A day later, the new Conservative head of the Commons Foreign Affairs Committee, Tom Tugendhat MP, was quoted as saying that the UK should “defend [British] values abroad above simple raw economics”.

This issue was recently brought into the legal arena once more by the High Court’s ruling in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017]. Here, the High Court upheld the legality of the government’s continuing provision of export licenses for arms sales to Saudi Arabia. As this article examines, the case itself provides a good overview of the arguments in what is likely to be an ongoing foreign policy debate, and an insight into what the English courts currently see as their role when judicially reviewing cases that border on contentious issues of foreign policy.

Background: Yemen and the Consolidated Criteria

Since early 2015, large swathes of Yemen – including its capital city, Sana’a – have been under the control of Houthi rebels and former forces of the Yemeni Republican Guard loyal to former President Ali Abdullah Saleh, who was ousted in 2012. His successor, President Abdrabbuh Mansour Hadi, was initially forced to resign and kept under house arrest before he fled to Saudi Arabia, which shares a border with Yemen.

On 24 March 2015, President Hadi requested support against the Houthis from the UN. In April 2015, UN Security Council Resolution 2216 was passed – it affirmed President Hadi’s legitimacy and condemned the actions of the Houthis. On 25 March 2015, in response to President Hadi’s request, a coalition of nine states led by Saudi Arabia began military operations against the Houthis.

The conflict in Yemen is ongoing and serious. Both sides have been accused by NGOs and observers of targeting civilians and other acts that breach international law, though much of the early conflict was overshadowed by the fighting in Iraq and Syria. Early in November, Saudi forces shot down a ballistic missile fired from Yemen towards the Saudi capital of Riyadh. Such an attack would likely have been in violation of international law with regards to the targeting of civilians.

Coalition forces, meanwhile, have been accused of using cluster munitions and targeting civilians in airstrikes in Yemen; this was the main issue on which R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] hinges. Given the extent of the UK’s trade with Saudi Arabia, it is highly probable that arms manufactured and sold by British companies were used in some of the Coalition’s operations – Amnesty International claims to have identified British, American, and Brazilian cluster munitions in use in Coalition airstrikes.

The law on arms sales is complex: it has as much to do with international treaties as domestic law. Nonetheless, the High Court and both parties accepted as uncontroversial the suggestion that the British government has adopted and bound itself to abide by the “Consolidated EU and National Arms Export Licensing Criteria” and the EU’s subsequent Common Position that was built upon them in 2008. For simplicity, this Article will refer to these as the Consolidated Criteria from here on in.

The Consolidated Criteria were most recently stated in 2014, and it is this version that courts have adopted for use. Specifically, Criterion Two is the one at issue in this case:

CRITERION TWO

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 attitude towards relevant principles established by international human 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. [emphasis added]

Criterion Four (preservation of regional peace, security and stability) and Criterion Six (the buyer country’s attitude to terrorism) are also interesting with regards to Saudi Arabia, but were not raised by the claimant in this case. It is also important to note that the Consolidated Criteria are to be applied on a case-by-case basis, instead of using an objective or automatic standard. The government is afforded a broad discretion to make its assessment and subsequent decision.

The Parties’ Arguments

The Claimants

Campaign Against the Arms Trade sought to challenge the government on three grounds:

  1. Its failure to ask correct questions or make sufficient inquiries as per the ‘User’s Guide’ for the Consolidated Criteria.
  2. Its unreasonable failure to apply the ‘suspension mechanism’: a provision of the Consolidated Criteria that allows the government to suspend current export licences for arms to Saudi Arabia.
  3. Its unreasonable conclusion that Criterion 2c of the Consolidated Criteria was not satisfied. This would have automatically prevented the granting of future licences.

The claimants based their challenge on the judicial review ground of “Wednesbury unreasonableness”. Stemming from the decision in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948], this ground allows the decision of a public body to be quashed where it is so unreasonable that no reasonable decision-maker would have reached the same decision.

They also harnessed the decision in Secretary of State for Education and Science v Tameside MBC [1976]. In this case, Lord Diplock stated that a court of law had the power to determine whether a public body had carried out sufficient inquiry before making a decision. In his own words:

The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?

The claimants in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] argued that the Secretary of State’s decision to not suspend current and future export licences to Saudi Arabia was in such defiance of logic that it was legally incorrect. In other words, it was so unreasonable that no reasonable decision-maker would have reached the same decision.

Indeed, they argued that the sheer weight of evidence – from NGOs and other organisations like the UN – suggesting that the Coalition was violating international law formed a “rebuttable presumption” that Saudi Arabia satisfied Criterion 2c of the Consolidated Criteria. This presumption was said to be “rebuttable” in that the Secretary of State would be obliged to provide evidence rebutting it in order to justify setting it aside.

Because the Secretary of State had not provided such evidence, the claimants argued that the Secretary was either uninformed –  in which case he had breached what the court called his  “Tameside duty” – or acting unreasonably, because if he had been informed, then he was not allowed to hold the opinion or reach the decision that he did.

This latter assertion in particular was always likely to be an uphill struggle. The claimants relied on evidence from international NGOs and UN bodies, and were joined by four interveners  Amnesty International, Human Rights Watch, Rights Watch and Oxfam  all of whom provided further evidence of Coalition strikes on apparently civilian targets. The claimants provided accounts of seventy-two separate incidents, which they argued were potentially serious breaches of international law.

The Government

The government’s response was essentially the inverse; it argued that the Secretary of State was very well informed of the issues and in fact had access to better information than the claimants and interveners. Of primary importance was the intelligence provided to him by the Ministry of Defence (MoD): it had tracked all but four of the seventy-two incidents cited by the claimants, but was not yet comfortable stating definitively that any one of them was a breach of international law.

Indeed, it was observed that the relevant law requires intent to constitute a breach; while civilian casualties in Yemen are not disputed, the intention behind them is extremely difficult to prove. In a modern warzone in which legitimate military targets (namely, the rebels) are dispersed throughout the civilian population (which in itself can be a breach of international law), civilian casualties may result from confusion or mistake rather than intentional targeting. Furthermore, the government argued, Criterion 2c of the Consolidated Criteria requires not merely previous violations, but the future prospect of a “serious” violation, the meaning of which is uncertain.

In addition to the MoD, the Secretary also had recourse to information from the Foreign and Commonwealth Office, British diplomats in Saudi Arabia, and members of the British military acting as trainers to their Saudi Arabian counterparts, who they claimed had a real commitment to improving their procedures for compliance with international law. All of these entities, and particularly the government departments involved, routinely shared information. The defence also submitted an unknown quantity of classified evidence that was seen by the court, but not released to the public.

In sum, the government’s main contention was that the Consolidated Criteria and case law only required the Secretary of State to ensure he was well-informed; he had done so, and was allowed to reach the decision he did no matter how much the claimants disagreed with it.

The Ruling

The High Court (consisting of a panel of two judges, Burnett LJ and Haddon-Cave J) in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] found in favour of the Secretary of State, and dismissed the claimants’ application for judicial review. The court agreed with the claimants on two matters only: that the evidence collected by the UN and NGOs constituted a serious body of evidence for Coalition breaches of international law (but not a “rebuttable presumption”), and that the tests set out in the Consolidated Criteria are legal tests. This means that political considerations such as the need to preserve jobs in the arms industry or maintain an alliance with Saudi Arabia could have no bearing on the Secretary of State’s decision.

The court went on, however, to thoroughly reject all three grounds of the claimant’s challenge. On the first ground – the failure to make proper inquiries – the court agreed with the defendant’s submissions: the Secretary of State was actually remarkably well-informed, and had access to more accurate information than the claimant and the intervening NGOs. The MoD and its adjacent departments had set up a rigorous and serious procedure for assessing alleged breaches. The court concluded that the questions laid out in the ‘User’s Guide’ for the Consolidated Criteria – which the claimants alleged he had not asked – were advisory, not binding. Any alleged failure of the Secretary of State to ask them was therefore not a breach of his duties.

Additionally, the court found that it was not in a position to decide whether the statements of Saudi military officials  cited by the government as evidence for their commitment to international law compliance were sincere or not, nor whether an aggressive public statement by a senior Saudi general could actually signal intent to commit a breach in future.

Given that the Secretary of State was actually quite well-informed on the events in Yemen, the court then concluded that – with regard to grounds 2 and 3 of the claimant’s challenge – the Secretary of State’s decision not to suspend or ban export licences to Saudi Arabia was not unreasonable. On account of the judiciary’s reluctance to interfere with the decisions of administrative law bodies, “Wednesbury unreasonableness” has always been an extremely difficult standard to reach – merely unpopular or immoral decisions are unlikely to fall within its remit. Indeed, as Lord Diplock explained in Council of Civil Service Unions v Minister for the Civil Service [1984], “Wednesbury unreasonableness” will only apply when the decision is:

[S]o outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Clearly, this bar was not met by the Secretary of State’s decision in this case. There are logical reasons – at the very least the “raw economics”, to use Tom Tugendhat MP’s phrase - for maintaining arms exports. Arguably too, the decision in Corner House Research shows there are legitimate national security benefits to be accrued from preserving good relations with Saudi Arabia. The ethics of such a course of action are not for a court to adjudicate on.

Indeed, throughout their judgement, the High Court referred to the question of whether the Secretary of State’s decision was “open” to him, not whether that decision was “correct” or in some way provably “good”. The court felt that the body of evidence compiled by the claimants was not so monumental as to require the government to explain why they had not abided by it - the Secretary of State had his own sources of information, had resorted to them, and was at liberty to reach the decision he did.

Implications

On receiving the court’s judgment, the claimants stated an intention to pursue an appeal. Given this, and the ongoing state of the conflict in Yemen (as well as in the region in general), this matter is likely to come before the courts again in the years to come. Indeed, it is worth noting that Campaign Against the Arms Trade was involved in the application for judicial review and subsequent appeals in Corner House Research.

For now, however, the High Court’s decision in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] permits two observations about the approach of the courts to matters like these to be made.

Firstly, the framework adopted by the judges in this case suggests that there may be circumstances in which a decision such as this is liable to be challenged by a court. The High Court implicitly confirmed Lord Diplock’s assertion in Tameside that public bodies could be required by the courts to have made themselves sufficiently informed on an issue before reaching a decision. Furthermore, it confirmed that the Consolidated Criteria describe tests that are entirely legal, not political. This means that the courts might still be willing to find that a minister’s decision was not legally correct, if they based their deliberations on political circumstances rather than a purely legal assessment.

Secondly, however, this case shows the continuing deference of the courts to the decisions of the government. This is not new. In many ways, the judgment in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] is a very standard and orthodox judicial review case. As the defendants pointed out, even Tameside makes clear that the judgements of the Secretary of State are to be respected to a significant degree. As Lord Diplock put it:

It is not for any court of law to substitute its own opinion for [the Secretary of State’s].

In both Corner House Research  and Council of Civil Service Unions, the courts were (and remain) extremely reluctant to second-guess members of the executive on matters adjacent to foreign policy or national security.

Conclusion

In general, the decision in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] restates existing, fairly conservative boundary lines between the executive and judiciary, which the courts will refuse to cross. The High Court was willing to evaluate whether the government had complied with its duty to inform itself, but refused to critique the judgement of officials or pass judgement on the evidence that they were weighing.

Furthermore, it confirmed that the substantive ground of “Wednesbury unreasonableness” – which has been equated with irrationality in cases like Council of Civil Service Unions  remains an extremely high standard to clear. The claimant in R (Campaign Against The Arms Trade) v The Secretary of State for International Trade [2017] failed in their attempt to effectively redefine it as something destructive or immoral.

Ultimately, it remains to be seen whether the case will be successfully appealed and what the higher courts will make of it. In all likelihood, they will reaffirm the decision of the High Court. However, it is 2017 – stranger things have happened.

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Tagged: Administrative Law, Anti-Terror, European Union, International Law, Judicial Review, Trade

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