First Administrative Challenge against the Secretary of State for International Trade

The Divisional Court dismissed the claimant’s submission on the three following grounds: 

EU User’s Guide

First, the court dismissed the claim that the Secretary of State’s risk assessment was unlawful because it had not asked relevant questions, especially those that are considered to be significant under the EU User’s Guide. The court ruled that the EU User’s Guide is non-binding and does not prescribe or oblige the Secretary of State to conduct a risk assessment in any certain manner. 

Lack of a meaningful risk assessment

Second, disagreeing with the claimant’s submission that licences to Saudi Arabia should have been suspended because of the lack of a meaningful risk assessment, the Court held that the licensing decisions of the Secretary of State were rational and lawful. In coming to this conclusion, the Court cited the discretion of the Secretary of State to weigh different sources of evidence and information in carrying out a risk assessment. 

Criterion 2(c) and clear risk 

Third, the court disagreed with the claimant’s core argument that the Secretary of State had irrationally concluded that the threshold in criterion 2(c) was not met and had failed to take into account clear evidence of serious IHL violations by Saudi Arabia in Yemen. The court ruled against the claim by maintaining that the risk assessment was conducted with ‘appropriate caution and on the basis of adequate and sufficient evidence’.

Claimant’s arguments

On appeal, the claimant submitted four further grounds to challenge the decision of the Secretary of State. 

In its first two grounds of appeal, CAAT continued to rely on arguments raised in its initial claim, namely that, when conducting its risk assessment, the Secretary of State had failed, firstly, to consider Saudi Arabia’s poor record of respect for IHL and, secondly, to ask relevant questions identified in the EU User’s Guide. 

Decision on Appeal

The Court of Appeal accepted CAAT’s first ground of appeal. It ruled that the Secretary of State’s consideration of Saudi Arabia’s record of respect for IHL was fundamentally deficient and did not give proper reasons for rejecting open evidence that clearly indicated a historical pattern of IHL violations by Saudi Arabia in Yemen. The Court held that, stemming from the Consolidated Criteria, there was a requirement to at least attempt to evaluate the existence of IHL violations.

Additional grounds of appeal

An additional submission by the claimants, which argued that the Divisional Court had failed to clarify the scope of ‘serious violations’ of IHL, was not accepted by the Court of Appeal. CAAT argued this term is broader than ‘grave breaches’ and war crimes as defined by international law.

A fourth argument that the Divisional Court had adopted an incorrect approach to the standard of review was not heard on appeal.

Remedy

In terms of remedy, the claimants asked the court for:

1. A prohibiting order that prevents the Defendant from granting further export licences for the sale or transfer of arms or military equipment to Saudi Arabia, for possible use in the conflict in Yemen, pending a lawful review by the Secretary of State as to whether such sales comply with the EU Common Position and the Consolidated Criteria.
2. A mandatory order requiring the Defendant to suspend extant licences for the sale or transfer of arms or military equipment to Saudi Arabia, for possible use in the conflict in Yemen, pending a lawful review by the Secretary of State as to whether such states comply with the EU Common Position and the Consolidated Criteria.
3. A quashing order requesting the annulment of the Secretary of State’s decision, communicated by letter of 9 December, to continue to grant new licences for the sale or transfer of arms or military equipment to Saudi Arabia in respect of such equipment.

The Court of Appeal quashed the Secretary of State’s previous decisions to not suspend licences and to continue to grant licences, and ordered the Secretary of State to retake these decisions on the correct legal basis as set out in the court’s judgement.