F-35 challenge fails

High Court refuses to let Palestinian NGO challenge ministerial decision

An independent Palestinian non-governmental human rights organisation based in Ramallah has failed in its attempt to challenge the lawfulness of a UK government decision permitting the export of F-35 fighter jet components to Israel.

In a High Court ruling yesterday, Lord Justice Males and Mrs Justice Steyn refused Al-Haq permission to seek judicial review of a decision taken last September by the business and trade secretary Jonathan Reynolds.

That “acutely sensitive and political issue”, the court said, was “a matter for the executive which is democratically accountable to parliament and ultimately to the electorate, not for the courts”.

The case was heard in May

The application was brought by Al-Haq with the support of Oxfam, Amnesty International UK and Human Rights Watch. At a four-day hearing in May, the claimant and the interveners were represented by no fewer than 20 barristers, although two of the three interveners were limited to written submissions. The government instructed nine counsel, including five KCs, and there were three special advocates.

Permission is the first stage in an application for judicial review and is sometimes considered together with the merits of the claim, as here, at what is called a “rolled-up” hearing.

Introducing their 72-page judgment, Males and Steyn said that Reynolds had decided on 2 September 2024 to to suspend licences authorising the export of items that might be used in carrying out, or facilitating, Israeli military operations in the conflict in Gaza.

This was because the government had formed the view that Israel was not committed to compliance with international humanitarian law in the conflict in Gaza and that there was therefore a clear risk that such items might be used in that conflict to commit or facilitate a serious violation of international humanitarian law.

However, the judges added, Reynolds had not suspended licences for the export of components for F-35 combat aircraft that could not be identified as destined for Israel. The lawfulness of that “carve-out” was what Al-Haq and the interveners were challenging.

Reynolds had received advice from ministerial colleagues, the court was told. According to the defence secretary John Healey,

(1) the multinational F-35 joint strike fighter programme is significantly dependent on the United Kingdom as the largest national provider of component parts outside the United States;

(2) it was not currently possible to suspend licensing for export of F-35 components for use by Israel without having an impact on the entire F-35 programme;

(3) a suspension of licensing for all F-35 nations would have a profound and immediate impact on international peace and security, would undermine US confidence in the UK and NATO at a critical juncture, would seriously undermine the credibility of the UK as a trusted partner on the international stage and would undermine a key capability allowing the UK and its closest allies and partners to address current security challenges.

According to the foreign secretary David Lammy,

(1) Israel was not committed to compliance with international humanitarian law in the conflict in Gaza;

(2) there was therefore a clear risk that military equipment exported to Israel which might be used in that conflict might be used to commit or facilitate a serious violation of international humanitarian law; and

(3) licences of such equipment should therefore be suspended; but

(4) because of the critical impact on international peace and security likely to be caused by suspending the export of components from the United Kingdom to the F-35 programme, an exception should be made for the export of such components save for those which could be identified as destined for Israel.

The judges said that Al-Haq’s claim for judicial review faced a high hurdle:

It would require this court to conclude that… the F-35 carve-out was unlawful when that decision was considered by the defence secretary and the foreign secretary — who are constitutionally accountable to parliament — to be “vital” for the security of the UK.

For the reasons which follow in this open judgment, supplemented by a short closed judgment, we have concluded that the claim cannot surmount this hurdle and that permission to bring a claim for judicial review must be refused.

After considering the legal issues in detail, the judges said it was important for people to understand what the claim had been about:

It has not been about whether the UK should supply arms or other military equipment to Israel. That decision has been made by the secretary of state, who has decided, in the September decision, that it should not. The decision not to supply such arms extends in principle to F-35 components which can be identified as destined for Israel.

Rather, this case has been concerned with a much more focused issue. That issue is whether it is open to the court to rule that the UK must withdraw from a specific multilateral defence collaboration which is reasonably regarded by the responsible ministers as vital to the defence of the UK and to international peace and security because of the prospect that some UK manufactured components will, or may ultimately be, supplied to Israel and may be used in the commission of a serious violation of international humanitarian law in the conflict in Gaza.

Under our constitution that acutely sensitive and political issue is a matter for the executive which is democratically accountable to parliament and ultimately to the electorate, not for the courts.

Despite the skill with which the claimant’s arguments were presented, once the true nature of the issue is identified it is clear that the claim must fail.

Al-Haq was represented by Alice Hardy, a partner at the law firm Bindmans. “This is a disappointing judgment,” she said yesterday. “If ever there was a case for the court to decide, this was it.”

Her clients were considering their position, she added.