The arms trade is very controversial. To some, it is inherently wicked and the UK should have no part of it. To others, the supply of arms to the UK’s allies and strategic partners buttresses stability in the world and boosts the UK’s national security (apart from its contribution to the UK’s economy).  UK law undeniably provides for the sale of arms but subject to a rigorous and complex licensing regime.  Under that regime, the Secretary of State for International Trade is — amongst many other things — not to grant a licence to supply arms (and to suspend a licence if already granted) “if there is a clear risk that [i.e. the arms sold] might be used in the commission of a serious violation of international humanitarian law”.  But who is to make the judgment whether there is such a “clear risk” or not? Should it be the Secretary of State or a High Court judge in an application for judicial review? The central argument of this post is that that decision is one for the executive authorities and that the judicial authorities should respect and defer to the executive judgment.

In Yemen, there is an ongoing conflict in which a coalition led by Saudi Arabia is fighting in support of the government of Yemen against Houthi rebels. The Saudi forces are using British supplied Typhoon planes and British supplied Paveway precision guided bombs.  The Campaign challenged this by bringing an application for judicial review (R (on the application of Campaign Against The Arms Trade) v The Secretary of State for International Trade and interveners.

The Campaign (and others intervening with similar concerns) provided a plethora of evidence (of variable quality), mostly in the form of reports by NGOs and other bodies that showed (in their view) that serious breaches of international humanitarian law had taken place in many attacks by the coalition in Yemen. This must, so they argued, have led the Secretary of State to anticipate a “clear risk” of “serious breaches”, and his failure to intervene was irrational and justified judicial intervention by way of judicial review.

But judicial review is rarely, if ever, about the merits of a decision. More than anything else, judicial review is about the way in which a decision is taken and whether it is taken by the right person. And the crucial point in this case is this: according to the court, the decision whether there is a “clear risk” is ‘”predictive” and involves the evaluation of risk as to future conduct in a dynamic and changing situation” (para 29). The court approved these words of Lord Bingham in A v Secretary of State for the Home Department:

“Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen.”

So decisions whether there was “a clear risk that [i.e. the arms sold] might be used in the commission of … serious violation[s] of international humanitarian law” are clearly not for judges whose metier is the objective analysis and assessment of events that took place in the past. These predictive decisions are par excellence decisions for Ministers who are accountable to Parliament for the decisions they make. Moreover, the ministers had access to all sorts of information not available to the court: intelligence reports, advice from other ministers, dialogue with the Saudi Government, knowledge of Saudi commitment to international humanitarian law and similar. (In fact, the British government was involved in the training of Saudi troops in compliance with international humanitarian law.) All this informed the Minister’s assessment. It followed that the Secretary of State’s decision that there was no “clear risk”, was not irrational and, consequently, that the Campaign’s application for judicial review was turned down.

All this is the straightforward application of classic judicial review principles and should not surprise. But there is something magnificent about the judgment. It is so long (215 paragraphs) because the judges (Burnett LJ and Haddon-Cave J) considered painstakingly the very extensive evidence provided by the claimants and by the Secretary of State — including “closed material”, i.e. material not disclosed to the claimants because a public interest (national security) precluded consideration in open court. There is nothing slapdash or superficial about it. If there were “a smoking gun” showing where the Secretary of State (or one of the civil servants for which he was responsible) had abused their powers, it would surely have been found. The diligence, impartiality, and independence of the judiciary (and the fidelity of the state to the rule of law) are on display here.

Splendid as this is, there are deep issues here. The very thorough judicial scrutiny just praised may have the effect of developing defensive decision-makers. Ministers and the civil servants who advise them may tend to make what they think are “judge-proof decisions”.  If this prevents them from making illegal decisions, that is a good thing; but if this prevents them from deciding in accordance with their estimation of where the public interest lies (when it would be lawful so to decide), it is a bad thing. Legal certainty is important in judicial review as elsewhere and the thoroughness of judicial scrutiny may add to uncertainty and undermine rather than vindicate the rule of law.

Meanwhile, the conflict in Yemen continues with suffering enough to break the hardest human heart.  The war was unlikely ever to have been shortened or ameliorated by a judicial review in London.  Another way must be found.