Judgment handed down in Campaign Against Arms Trade v Secretary of State for International Trade

14 Jun 2023

The Divisional Court (Popplewell LJ and Henshaw J) has issued judgment in a challenge by Campaign Against Arms Trade (“CAAT”) to the Secretary of State’s decision to continue granting licences for the export of arms to the Kingdom of Saudi Arabia.

The claim brought by CAAT challenged the Secretary of State’s decision, of July 2020, to continue to grant licences for the export of arms and military equipment to the Kingdom of Saudi Arabia for use in Yemen.  The Secretary of State is obliged to cease granting new licences and suspend existing licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law (“IHL”)”.

The Secretary of State’s most recent decision was made following an earlier judgment by the Court of Appeal in which it found that the Secretary of State had erred by failing to assess whether, in individual instances, the Saudi Coalition may have been responsible for violations of the laws of war in past incidents.

The Secretary of State had found that the clear risk test was not met because there was no pattern of previous violations.  CAAT challenged the decision on 4 grounds. First, that there was no proper evidential basis for the Secretary of State’s conclusion that there had only been a limited number of IHL violations. Second, that there was no proper evidential basis for the Secretary of State’s conclusion that there was no pattern of IHL violations. Third, that irrespective of the existence of a pattern, there was no proper basis for concluding that Criterion 2c was not engaged, given the alleged record of past violations. Fourth, that the Secretary of State misdirected herself as to the meaning of “serious” violations and failed to consider whether officials in KSA enjoyed impunity for serious violations.

The Court found that the Secretary of State has a wide margin of discretion in reaching judgments on matters going to each of the four grounds of challenge and that the decision-making process could not be characterised as meeting the high threshold of irrationality in this context.

Conor McCarthy was junior counsel for CAAT, instructed by Leigh Day.

Michael Armitage was counsel for Oxfam, which intervened in the proceedings.

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