In an exercise in legal orthodoxy, on 30 June 2025 the High Court refused to grant permission to bring judicial review proceedings to Al-Haq, a Palestinian non-governmental human rights organisation, in its challenge of the Secretary of State for Business and Trade's ('the SoS') decision to grant the 'F-35 Carve-out', when suspending export licences for military equipment to Israel. Nothing is impossible, but this judgment will seemingly only be overturned by a radically different approach by the Supreme Court (should the case ever surmount the considerable obstacles in getting there, given the application failed at the permission stage). That seems unlikely given its recent precedent, significantly relied upon in this judgment.
In essence, changes to policy such as this are matters for politics and Parliament. Notably, Parliamentarians are now picking their way through how Government policies were formulated and changed over time, available in the evidence presented to the Court.
Key takeaways
- The Court continued to show a high level of deference to the Executive in matters of national security, foreign policy and the UK's role/actions in world geopolitics. The Court recognises and adopts the long-established precedents in this field and, on the facts here, effectively rules itself out as an appropriate forum to consider such issues. In CLOSED evidence, where the Claimant's interest was safeguarded by Special Advocates, the policy in question is justified as rational in fact.
- The Court continues to adopt a conservative approach in considering the role of international law in the UK domestic law. Notably, unincorporated treaties will not have effect in English law unless there is a 'domestic foothold', which was not the case here, as the UK Government had simply adopted certain policies recognising international obligations. The national security context of the UK's part in the F-35 Programme for the manufacture and maintenance of F-35 combat aircraft was key to this determination.
- Customary international law will only be received into common law if it meets high standards of clarity, consistency, and acceptance, as set out in Benkarbouche v Embassy of the Republic of Sudan [2017] UKSC 62.
- The Court approaches with extreme caution Al-Haq's invitation to find unlawfulness on administrative law grounds based upon prospective criminal liability in giving effect to a properly formulated policy. In this regard, R v Registrar General ex p Smith [1991] 2 QB 393 remains a legal outlier, not a precedent-setting case to prevent discretionary powers from being used controversially, especially where the nexus between the statutory duty (or discretionary power) and the facilitation of future crime is evidentially unclear or attenuated. It reiterates the position that judicial consideration of criminal liability is within the purview of the criminal courts, armed with a concrete set of facts, not a civil court.
Background
On 2 September 2024, the SoS suspended licences authorising the export of items that might be used in carrying out or facilitating Israeli military operations in the conflict in Gaza. The SoS did so because the Government had formed the view that Israel was not committed to compliance with international humanitarian law ('IHL') and, therefore, there was a clear risk that such items might be used in that conflict to commit or facilitate a serious violation of IHL.
However, the SoS excluded from that suspension licences for the export of components for F-35 combat aircraft that could not be identified as destined for Israel but were part of an ongoing obligation to contribute to an 'F-35 spares pool' agreed with other participating nations in the F-35 Programme (but not Israel): the 'F-35 Carve Out'. Al-Haq challenged that policy.
Legal framework
The Export Control Act 2002 ('ECA') empowers the SoS to impose export controls on military goods. Issued pursuant to the ECA, the SoS's decisions are guided by the Strategic Export Licensing Criteria ('SELC'), issued to give practical effect to the ECA. The SELC's criteria prioritise compliance with international obligations, such as the Arms Trade Treaty ('ATT') and the Geneva Conventions ('GC'), as well as respect for human rights. The criteria can be set aside in exceptional cases, as announced to Parliament when the SELC were settled (paras 19-21).
Two crucial factual questions
In its 'OPEN' judgment, the Court addressed two crucial factual questions which underpinned the policy under challenge:
What is the true nature of the 'F-35 Carve Out'?
The UK is the second-largest contributor of F-35 components to an international collaborative defence programme which produces and maintains F-35 combat aircraft, and is crucial for NATO's operations. Israel itself is not a partner nation, but is one of the customers of the F-35 Programme.
The Court noted that the true nature of the F-35 Carve Out was not that the UK would continue to supply F-35 components to Israel. Instead, the UK would continue to participate in the F-35 Programme by delivering into the spares pool, where Israel might be a beneficiary not as a member of the Programme but as a consumer of spares from the pool, albeit the UK would not provide spares where Israeli receipt was known. In the view of the Foreign Secretary and the Defence Secretary, the decision to maintain the UK's supply of spares to the Programme was of critical importance for international peace and security (para 41).
Genocide occurring in Gaza
The UK Government's internal assessment in determining how the SELC criteria were to be applied considered whether a genocide was occurring in Gaza. The responsible part of the SoS's department, the Export Control Joint Unit ('ECJU') acknowledged that actions in Gaza, such as civilian casualties and destruction, could meet the physical element of genocide, but found insufficient evidence of genocidal intent by Israel. It concluded that these actions might instead reflect the conduct of an intensive military campaign in a densely populated area.
This position was based on a 'high threshold' test, requiring that genocidal intent be the only reasonable inference from the conduct complained of. While the ECJU noted disturbing statements made by Israeli officials, they were not deemed representative of the state of Israel's intent. The ECJU and Foreign Secretary ultimately maintained that Israel was not harbouring genocidal intent, and that UK exports remained consistent with the UK's duty to prevent genocide. The Court in this case accepted that the UK Government had approached the issue with due diligence and care.
The Challenge and the Judgment
Whether the F-35 Carve Out was consistent with the UK's international law and customary international law obligations?
Al-Haq challenged the "F-35 Carve Out" on several grounds. The primary ground was that the SoS misdirected himself by determining that the Carve Out was 'consistent with the UK's ... international legal obligations'. It was said the Carve Out put the UK in breach of its obligations under three international treaties, the aforementioned GC and ATT, and the Genocide Convention.
The Court agreed with the SoS that the challenge was not justiciable in a domestic court, primarily because the treaties in issue have not been incorporated into domestic UK law by legislation in any relevant part. A domestic court has no jurisdiction to interpret or apply an unincorporated treaty.
The principal argument from Al-Haq (and the intervenors Oxfam, Amnesty International UK, and Human Rights Watch) was that the general rule of non-justiciability was displaced because here there was a sufficient 'domestic foothold', effectively: 'it is necessary to decide a question of international law in order to determine a question of domestic law', as explained in Law Debenture Trust Corporation v Ukraine [2023] UKSC 11 para 158.
The Court recognised R (EOG) v Secretary of State for the Home Department [2022] EWCA Civ 307 represents strong persuasive authority that if a policy is expressly stated as being intended to comply with an international obligation, it is open to the court to hold that it is unlawful if it does not so comply. Nevertheless, the Court concluded that in matters involving foreign policy and national security, even if a domestic court might have jurisdiction via a 'domestic foothold', the court will exercise its jurisdiction cautiously, with deference given to the view of the Executive for institutional and constitutional reasons, and in some cases the court will, in any event, decline to adjudicate (para 88).
Within the spectrum of policy considerations where a court is able to adjudicate depending on the nature of the issue - confirmed as a matter of principle and not of judicial discretion - the Court found there was no such 'domestic foothold' in this case on two grounds:
- The matter raises issues such as national security and the UK's participation in the F-35 Programme, which are 'reserved under our constitution to the judgment of the executive which is democratically accountable to Parliament and the electorate', and not for the courts to determine (para 112).
- Even if it was open to the Court to determine whether the F-35 Carve Out was in accordance with the SELC's guidance, it could only be so if the SoS had purported to apply that guidance. However, the SoS did not do so. Instead, the 'F-35 Carve Out' was taken outside the framework of the SELC, as a specific measure in an exceptional case (which was itself permitted by the SELC and announced publicly).
The Court also rejected Al-Haq's alternative claim, that the SoS's self-direction in the decision letter that the F-35 Carve Out was 'consistent with the UK's international obligations' provided a 'foothold'. The Court held that a 'foothold' does not appear merely because a Minister may have an incorrect understanding of non-enforceable obligations: applying Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 (Admin) and R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60.
Al-Haq also contended that the F-35 Carve Out was contrary to domestic law as it breached three rules of customary international law, which have or should have been received into common law. They were said to be to ensure respect for the Geneva Conventions; to prevent genocide; and to avoid facilitating internationally wrongful acts.
This argument was firmly rejected on the basis:
- The obligations do not satisfy the 'very demanding' test for reception into the common law, as set out in Benkarbouche v Embassy of the Republic of Sudan [2017] UKSC 62. Al-Haq was unable to demonstrate that there is a widespread, representative and consistent practice that states accept these 'rules' as 'legal obligations'.
- Customary international law does not automatically form part of domestic law and any reception of it must be consistent with constitutional principles, including the foreign act of state doctrine and the separation of powers (para 134). Here, receiving such obligations into domestic law would constrain 'executive decision making in areas which under our constitution are the responsibility of the executive and not the courts' (para 135).
Whether the F-35 Carve Out was ultra vires or irrational?
Al-Haq also contended that the SoS had exercised his powers in a manner that was ultra vires the ECA and Export Control Order 2008 because the policy itself gave rise to a crime and was thus unlawful. Specifically, Al-Haq argued that the F-35 Carve Out gave rise to a significant risk of facilitating serious crime (offences under the Geneva Conventions Act 1957 and the International Criminal Court Act 2001) as supplying components to the F-35 Programme would facilitate the commission of war crimes by the Israeli military. It was suggested UK factory workers manufacturing these components may be criminally liable as accessories.
Al-Haq's argument was grounded in a principle of statutory interpretation drawn from R v Registrar General ex p Smith [1991] 2 QB 393: Parliament is presumed not to authorise the use of statutory powers in a way that would facilitate serious crime, unless it has clearly stated otherwise. In response, the SoS argued that Smith was a wholly exceptional case concerning a convicted double killer where disclosing information (his birth certificate) under the relevant statutory duty was akin to 'signing [his birth mother's] death warrant.'
The Court, however, found Al-Haq's arguments, particularly those regarding the accessory liability of factory workers, to be 'far-fetched'. The Court identified the difficulties in proving the requisite mental state and the unreliability of information in the context of an urban armed conflict involving the dissemination of disinformation and complex targeting issues whereby Hamas personnel adopted a deliberate policy of using civilian facilities for military purposes.
The Court agreed with the SoS, holding that Smith did not establish a broad interpretive rule of the kind the Claimant suggested (para 163), but, rather, applied a narrowly tailored exception grounded in extreme and specific facts, involving a direct and immediate risk of harm where the nexus between the statutory duty and the future enabling of criminal conduct was compelling. In contrast, Al-Haq was asking the Court to assess an undefined and speculative risk, without any identifiable principal or secondary offenders, and in a complex international context. Furthermore, the grave risk to life in Gaza was not created by the F-35 Carve Out and would not be removed by suspending UK exports of F-35 parts, nor was the nexus in this case comparable to that in Smith (para 164).
The Court also reiterated R (Rusbridger) v Attorney General [2003] UKHL 38, by cautioning against civil courts making findings about hypothetical future criminal liability, particularly in the absence of input from prosecutorial authorities (para 162), reaffirming the principle that such matters are properly dealt with by criminal courts on the basis of concrete facts.
Al-Haq also challenged the rationality of the F-35 Carve Out, arguing the SoS failed to consider less disruptive alternatives (e.g. issuing instructions to exclude Israel from receiving UK components via the F-35 global spares pool). The SoS, taking account of the Defence Secretary's advice, argued that the F-35 Carve Out avoided causing significant disruption to the overall programme, critically affecting international peace and security, including NATO's collective defence and deterrence, and damaging the UK's relations with other NATO states, including the US.
The Court flatly rejected Al-Haq's submissions, relying on both OPEN and CLOSED evidence, including an expert official's testimony that the F-35 programme is highly integrated and governed by a multilateral MOU (para 173). Unilateral decisions, such as blocking transfers to specific countries, are not permitted under the existing governance structure. Nor was it feasible for the UK alone to issue binding instructions to prevent its parts from reaching Israel via the spares pool or assembly lines.
The SoS was faced with the blunt choice of accepting the F-35 Carve Out or withdrawing from the F-35 Programme entirely and accepting all the defence and diplomatic consequences which would ensue. In such circumstances, the decision was not irrational (para 180).
Al-Haq argued that, while the SoS had taken account of the serious adverse consequences for the UK of suspending export licences for F-35 components, he had failed to carry out the same exercise in assessing the severity of the consequences for the people of Gaza if such exports were allowed to continue.
The Court applied the principle in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, paras 68 and 69, where Lord Justice Laws held that a published policy may only be departed from when that is 'a proportionate response ... having regard to a legitimate aim pursued by the public body in the public interest'. The F-35 Carve Out was a proportionate and rational departure from policy, based on a legitimate aim, namely NATO and UK national security. The SELC itself allowed for case-specific exceptions. The Court accepted that the SoS had reasonably evaluated the adverse impact on international peace if the UK exited the F-35 Programme (para 187).
Whether the decision to not send a political signal was good policy?
Finally, on the basis the SoS had a discretion in deciding whether to send a political signal by suspending licences assessed not to be for use in the current conflict in Gaza and had chosen not to do so, Al-Haq argued he had erred and had not taken relevant factors into account, such as Israel's 'breach of international law' (para 193).
Unsurprisingly the Court held that the SoS was not obliged to take 'sending a political signal' into account, when making his decision. These factors were not obviously material in the context of a political and foreign policy-driven discretion in the context of the F-35 Carve Out.
Conclusion
Whatever one's views of the legitimacy or lawfulness of Israel's actions in Gaza or of UK policy towards Israel in light of those actions, this careful judgment underscores the limits of judicial intervention in foreign policy and national security, especially where international obligations are not expressly and directly incorporated into UK law.
From a policy perspective, it highlights the tension between the need to engage on a policy that seeks to protect the UK and international peace and security, where a (potential) beneficiary of that policy is a nation-state against which accusations of grave breaches of international humanitarian law are made, and the UK Government's obligations to conform with international law and human rights requirements. More specifically, the judgment reveals how such challenges to the UK Government's policies are likely to play out in the courts.
In that respect, the case does not 'shift the dial' on the domestic courts' traditional deference to the Executive in matters of national security and foreign policy. On the facts here, supported by evidence as to the imperatives in those areas and the UK's obligations to international partners, with a rational export control process with publicly avowed exceptions where those interests are in play, it is unsurprising that it did not.
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