Yemen’s devastating conflict has inflicted an egregious toll on civilians, catalysing, in the words of the UN Secretary General, a tragedy of ‘almost unprecedented proportions’. Last month the ICRC took the unusual step of identifying an ‘alarming trend’ of attacks against civilians and sharply criticised a Saudi led coalition strike as running ‘counter to the basic tenets of the law of armed conflict’.

Against this backdrop, the UK’s failure to curb arms sales to Saudi Arabia remains a matter of intense controversy. In R (on the application of Campaign Against the Arms Trade) v Secretary of State for International Trade, the High Court handed down a decision on the lawfulness of the Secretary of State’s granting of export licences to Saudi Arabia. This blog, part one of two, examines the foundations of the wide degree of deference the Court afforded to the decision maker.

 UK arms exports are governed by the Consolidated EU and National Arms Export Licensing Criteria (Consolidated Criteria). Criterion 2 (c) conditions the granting of an export licence on an assessment of whether there is a ‘clear risk that the items might be used in the commission of a serious violation of international humanitarian law’.

The claimant, Campaign Against the Arms Trade (CAAT), launched an administrative law challenge to the Secretary of State’s conclusion that Criterion 2 (c) was not satisfied. Their primary submission was that the body of publicly available evidence – including a report from a UN Panel of Experts, which concluded IHL violations were ‘widespread and systematic’ – raised a presumption of ‘clear risk’ that, on the open evidence, the Secretary of State could not rationally rebut. [54] The Court dismissed the claim, holding that the Secretary of State was rationally entitled to conclude ‘Saudi Arabia has been and remains genuinely committed to compliance’ with IHL. [210]

At the outset, the Court set out its proposed standard of review. While the Court acknowledged that the ‘nature of the decision in this context, involving as it does risk to life, necessitates a rigorous and intensive standard of review’ [27], this did little to temper the wide degree of deference afforded to the Secretary of State.

In concluding that ‘considerable respect’ should be afforded to the decision maker, the Court accepted six points submitted by the Secretary of State. Some of these were predictable, if unreflective, applications of the English Court’s established jurisprudence on deference, justified either on the basis of institutional competence ([31], [30] and [32]) or democratic legitimacy ([33]). While the Court agreed that the closed material procedure enabled them to consider the full range of evidence before the decision maker [212], disappointingly they did not assess how this might undercut institutional competence justifications.

Two points that the Court unquestioningly accepted merit particular interrogation.

First, the Court accepted the Secretary of State’s submission that the assessment was ‘predictive’, citing Lord Bingham’s statement in the Belmarsh case that ‘Any prediction about the future behaviour of human beings…is necessarily problematical’. [29] Yet looking at the context and underlying justification for Lord Bingham’s statement, the parallels between Belmarsh and the present case fall away.

At issue in Belmash was the Government’s determination that there was an emergency threatening the life of the nation within the meaning of Article 15 of the ECHR. Lord Bingham’s dicta on prediction was rooted in and contingent on his characterisation of the nature of this determination as a ‘pre-eminently political judgment’. In the present case, however, the Court accepted that Criterion 2 (c) involves the application of a clearly delineated legal test and, though imbued with ‘assessments of how a friendly foreign government will act’ and ‘informed by diplomatic and security expertise’ [28], this does not bring it remotely close to the exercise of a ‘pre-eminently political’ judgment, nor does Criterion 2 (c) admit such a characterisation. Moreover, Lord Bingham’s statement was followed by his recognition that, in exercising this judgment (i.e. establishing a state of emergency), ‘[i]t would have been irresponsible not to err, if at all, on the side of safety’. In this case the Government did precisely the opposite: erring on the side of risk.

Secondly, the Court accepted the parallel drawn by the Secretary of State between the issues arising in the present case and national security determinations. [28] Neither the Court, nor the Secretary of State, offered any elaboration on why these contexts are analogous. If this broadens the scope of what has been termed ‘spatial deference’ (i.e. deference deriving from a particular subject matter) beyond the traditional confines of national security to cordon off new spheres from rigorous judicial scrutiny, it is cause for concern, particularly in the absence of clarity as to what it is extended to encompass: could it extend to arms export decisions? Any decision drawing on sensitive sources? Decisions turning on an assessment of the lawfulness of another State’s acts?

The second part of this blog will examine how this deferential standard of review manifested itself in the Court’s approach to the large volume of evidence before it, and which, I will argue, skewed their avowed ‘objective approach’. It will also discuss the high threshold the Court endorsed for establishing past IHL violations.