In R (Al-Haq) v Secretary of State for Business and Trade [2025] EWHC 1615 (Admin), the Divisional Court refused permission to bring judicial review proceedings against the Secretary of State for Business and Trade's (the SoS) decision to apply a carve out from the suspension of export licences for military equipment.
Key points
- For acutely sensitive and political issues, such as matters of national security and foreign policy, decision-makers continue to be afforded a significant margin of discretion with the courts respecting the executive's constitutional role in making such decisions.
- 'Domestic footholds' which allow UK domestic courts to interpret and apply unincorporated treaties will be difficult to establish in such areas.
- Decision-makers' views of international obligations in this context will be reviewed by the lower standard of "tenability".
Background
In September 2024, the SoS suspended licences authorising exports which might be used in carrying out or facilitating Israeli military operations in the conflict in Gaza. However, the SoS excluded from this decision the supply of components for F-35 combat aircraft which could not be identified as destined for Israel (the F-35 Carve Out). The SoS justified this decision on the basis that it was not currently possible to implement such a suspension without impacting the entire F-35 programme, which the Government considered would have a "critical impact on international peace and security".
The Export Control Act 2002 (the ECA) authorises the SoS to impose export controls, including in relation to military equipment. The Strategic Export Licensing Criteria (the SELC) set out guidance about general principles to be followed when exercising these licensing powers, as required by the ECA, including respect for the UK's international obligations. However, as with policy and guidance generally, the SoS may depart from the SELC in exceptional cases.
Judgment
Numerous grounds of challenge were advanced by the claimant, all of which were dismissed by Males LJ and Steyn J.
Compliance with the UK's international obligations
The claimant argued that the SoS (i) was wrong to assess the F-35 Carve Out as incompatible with Criterion 1 of the SELC, which requires respect for the UK's international obligations, and (ii) misdirected himself when concluding that the F-35 Carve Out was "consistent with the UK's ... international legal obligations". As such, the claimant contended that the SoS had misunderstood and misapplied the Geneva Conventions, the Arms Trade Treaty, the Genocide Convention and rules of customary international law (CIL).
In considering justiciability, the court noted that the treaties in issue were unincorporated and therefore did not give rise to domestic legal obligations - nor does a domestic court have jurisdiction to interpret or apply such treaties. However, the court did acknowledge that where there is a sufficient 'domestic foothold', ie where "it is necessary to decide a question of international law in order to determine a question of domestic law" (Law Debenture Trust Corporation v Ukraine [2023] UKSC 11, [2024] AC 411 - see our blog post), the courts may interpret or apply such a treaty.
The court distinguished between non-justiciability (cases where the court has no jurisdiction to interpret or apply unincorporated treaties) and deference (in cases involving foreign policy or national security where there may technically be jurisdiction, but it will be exercised cautiously). There is a 'spectrum' in the extent to which the courts are able to adjudicate, which will depend on the nature of the issue at hand. Even where there is a 'domestic foothold' sufficient to give the court jurisdiction, the institutional and constitutional factors involved in matters of high policy still apply. The concept of the 'domestic foothold' must be interpreted in a way which does not require the courts to trespass on matters which are properly the responsibility of the executive.
On the facts, the court concluded that the SELC did not constitute a 'domestic foothold'. The SoS had not purported to apply the SELC, but had instead taken the decision outside the framework of the policy, as a "specific measure in an exceptional case". The court also rejected the claimant's argument that the SoS's self-direction constituted a 'domestic foothold'. Previous authority does not stand for a general proposition that a statement by a minister or public official that a decision is in accordance with the UK's international obligations enables the courts to assess the correctness of that statement. The court was heavily influenced by the fact that sensitive matters such as defence, international peace and national security were all engaged.
The judgment also considered the appropriate standard of review if a 'domestic foothold' had been found. The court cited a recent line of case law to confirm the principle of tenability as established, with its applicability in the context of unincorporated international obligations "always depend[ing] on the circumstances of the individual case" (R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWCA Civ 1227). In highly sensitive areas involving political judgment, it is inappropriate for a domestic court to determine these issues definitively, which the court refused to do on the facts. Instead, the court should confine itself to asking whether the executive's decision was "tenable" as a matter of international law.
Compliance with CIL
The claimant also argued that the F-35 Carve Out was contrary to domestic law as it breached three rules of CIL, which it argued either had been or should be held to form part of the common law. Determining the existence of a rule of CIL involves a "very demanding" test and, even if met, its reception into the common law must conform with constitutional principle. On the facts, the claimant did not demonstrate a "widespread, representative and consistent practice" accepted by states as a legal obligation, with the court again highlighting that the reception of these rules of CIL into common law would "constrain executive decision making in areas which under our constitution, are the responsibility of the executive".
Ultra vires / irrationality
Further, the claimant raised various arguments of ultra vires and irrationality, including a failure to take into account relevant considerations and irrational departure from policy. The court firmly dismissed these grounds, emphasising throughout the deference which must be given to the SoS in a decision of this nature.
Comment
In a demonstration of legal orthodoxy, each element of the Divisional Court's decision reinforces fundamental constitutional principles regarding the limits of judicial intervention in matters of foreign policy and national security, where greater political judgment is required and democratic accountability dictates that such matters should be the responsibility of the executive and not the courts.
As such, a conservative approach continues to be adopted when considering the role of international law in UK domestic law, with the case illustrating the applicability and standard of review applied by the courts when asked to consider unincorporated international treaties. However, the guidance on 'domestic footholds' as a route to domestic courts considering such issues is helpful, and may have greater relevance in less politically sensitive contexts where the courts are not so wary about scrutinising executive decision-making.
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