THE QUEEN (ON THE APPLICATION OF CAMPAIGN AGAINST ARMS TRADE) AND THE SECRETARY OF STATE FOR INTERNATIONAL TRADE AND OTHERS [2019] EWCA CIV 1020 ('CAAT V SOS').

• Author: Miller, Jasmine

I INTRODUCTION

CAAT v SOS concerned a judicial review application relating to the legality of the decisionmaking process employed by the Secretary of State for International Trade ('Secretary') in licensing arms exports by the United Kingdom ('UK') to Saudi Arabia for use by Coalition forces in the Yemen conflict. The Campaign Against Arms Trade ('CAAT') appealed to the Court of Appeal against a negative decision of the Administrative Divisional Court. The appeal involved both open and closed evidence and hearings. Sir Terence Etherton MR, Irwin LJ and Singh LJ delivered open judgment on 20 June 2019. On 9 July 2019 the UK government was granted permission to appeal the decision to the Supreme Court and the appeal was due to be heard in November 2020. However, on 7 July 2020 the Secretary confirmed that the government intends to withdraw its appeal to the Supreme Court. (1) This case note focuses on the Court of Appeal's judgment of 20 June 2019.

II LEGISLATIVE CONTEXT

1. The Secretary's licensing powers

   Both European Union (EU) law and international law inform the UK's domestic statutory scheme governing the licensing of arms exports. The Secretary is empowered to 'make provision for or in connection with the imposition of export controls in relation to goods of any description' (2) and may issue a control order for the purpose of giving effect to any obligation under EU or international law. (3) The Secretary must give guidance about the general principles to be followed when exercising any such licensing power, (4) and may give guidance about any matter relating to the exercise of any licensing power or other functions conferred by a control order? The UK's Consolidated EU and National Arms Export Licensing Criteria ('Consolidated Criteria') (6) implement the EU Common Position, and the User's Guide to the EU Common Position sets out best practices for applying the Consolidated Criteria. (8)

2. Criterion 2

   Criterion 2 of the Consolidated Criteria addresses respect for international humanitarian law by the country of final destination of the exported arms. It requires the Secretary to assess the recipient country's attitudes towards international humanitarian legal instruments, and to 'exercise special caution and vigilance' in each case when deciding to grant a licence to a country where serious violations of human rights have been established. (9) The government must not grant a licence where there is a 'clear risk' that the exported items might be used to commit a 'serious violation' of international humanitarian law. (10) The User's Guide calls specifically for an inquiry into the recipient country's 'past and present record of respect for international humanitarian law' and its 'intentions as expressed through formal commitments' as well as its actual capacity to ensure that the arms are used in a manner compliant with international law. (11)

   Ill LOWER COURT DECISION

   The Administrative Divisional Court dismissed an appeal by CAAT in a decision handed down on 10 July 2017. CAAT's open case rested on three grounds. First, CAAT argued that the Secretary had failed to ask correct questions and make sufficient enquiries in deciding to grant export licences. (12) CAAT sought an order prohibiting the Secretary from granting further export licences for the sale or transfer of arms to Saudi Arabia, for possible use in Yemen, pending a lawful review by the Secretary as to whether such sales comply with the Consolidated Criteria. Secondly, CAAT argued that the Secretary had failed to suspend extant licences pending a review under the first ground of appeal. CAAT sought a mandatory order requiring the Secretary to apply this 'suspension mechanism'. (13) Thirdly, CAAT argued that the Secretary had acted irrationally in concluding that there was not a 'clear risk' of the exported arms being used to commit a serious violation of international humanitarian law under Criterion 2c. (14) Accordingly CAAT sought an order quashing the Secretary's decision to continue to grant new licences.

   IV THE COURT OF APPEAL

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