British arms sales to Saudi Arabia held to be based on irrational decision-making process

On 20 June 2019, in R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, the Court of Appeal upheld a challenge to the lawfulness of the UK Government's grant of export licences for the sale of arms and military equipment to Saudi Arabia which could have potentially been used in the conflict in Yemen.

In this judicial review brought by the Campaign  Against Arms Trade, the Court of Appeal held that the Government's decision-making process had been irrational as it had not included an assessment as to whether Saudi Arabia had previously violated international humanitarian law in the Yemen conflict and so could not have properly assessed the risk of future violations. This is important as under the UK's export policy, such licences should not be granted if there is a "clear risk" that weapons might be used in "serious violation of international humanitarian law".

The Court held that a covert change of UK policy towards Saudi Arabia had taken place in 2016 where it was decided that there would be no assessment of past violations of international humanitarian law when signing off on arms exports.

The Court ordered the government to hold an immediate review of all its arms export licences made to Saudi Arabia since the start of the conflict in March 2015 (estimated to be £4.7bn in value). In response, Liam Fox, the International Trade Secretary, announced that the Government would not grant any new licences for export to Saudi Arabia and its coalition partners while it considers the judgment, but also promised to appeal against the judgment.

It is worth clarifying that the Court explicitly did not comment on what the outcome of the decision-making process would have been had it been carried out correctly.

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