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Andrew Tettenborn: Lefties squeal to the judges after losing in the court of public opinion


Some people say that nations in their dealings with other nations do not have morals, but simply interests. This probably goes too far. Nevertheless this particular nation had a lucky escape on Monday, when it saw off an attempt to have its international morality determined for it, not by its elected government but by the High Court.

All arms sales to any foreign country must be licensed by the UK Government. Earlier this year CAAT, the Campaign Against Arms Trade, asked the High Court to prohibit the Trade Secretary from permitting any sales to Saudi Arabia (which buys about £3bn worth of arms from us each year). They alleged that the UK’s treaty commitments under the UN Arms Trade Treaty of 2013, together with EU and UK stated policy, prohibited sales of arms where the exporter believed they were likely to be used contrary to international humanitarian law; that arms sold to the Kingdom had been misused in Yemen; and that that for that reason exports must cease.

They lost, much to the chagrin of Guardian readers. The Court found that the UK Government had received sufficient assurances against misuse. So all is well. Or is it? This remains a worrying development.

For one thing, it shows a continuing effort by the Left to seek to get its way, not by persuading the rest of us to vote for what it wants, but by making a call to its lawyers (in this case Leigh Day, long-standing supporter of all causes left-wing, and a firm which has recently had to suspend two of it trainees after complaints were made that it was hustling for business among the residents of Grenfell Tower). You only have to think of Gina Miller on Brexit, the challenge to the Government’s emissions targets just before the election, and (a coming attraction) a lawsuit to invoke the Good Friday Agreement to prevent the DUP supporting the Tories.

For another, the High Court pointed out (entirely correctly under the existing law) that even if the court did not seek to overrule ministerial judgment, this (a) was a matter of grave import because it involved the lives of Yemenis and as such needed close scrutiny by the courts, and (b) was a decision the Secretary of State could not take, even partly, on the basis of political expediency.

Both of these statements should worry you. Nearly all foreign policy decisions involve risk to the lives of someone, somewhere; the prospect that ministers conducting the UK’s international relations should have to brave constant and close scrutiny by left-wing litigators threatening lawsuits is not attractive. And the idea that matters as delicate as arms sales should be off-limits to political compromise is downright worrying. There is, or ought to be, room for F.D.Roosevelt’s reputed quip “He may be a son of b***h, but at least he’s our son of a b***h” – especially indeed in the case of Saudi Arabia, where however unattractive we may find the House of Saud and its Wahhabi sidekicks, the prospect of the collapse of that regime with the power vacuum that would entail does not bear thinking about.

The real problem is that this is not the sort of thing that it is appropriate to burden the judges with deciding. Not only does it shove them into the political arena where they don’t belong: its ill-suitedness to the courts is further demonstrated by the fact that this very litigation had to be determined to a large extent on the unsatisfactory basis of “closed material” – evidence, that is, so sensitive that it can be disclosed neither to the public nor to the other side’s lawyers, and can be seen only by government-vetted lawyers.

By contrast, if decisions of this sort are taken by politicians they must take at least some of the consequences. No doubt some MPs will be happy to explain matters to an employee of BAE who has just been made redundant as a result of a Saudi arms contract having been forcibly diverted to France or the US: “Terribly sorry it’s your job that went and not mine: but it happened to be my day for virtue-signalling, and it can’t be helped, old boy.” If so, good for them: but it should then be up to their constituents to decide whether they wish to vote for them in future.

What should we do? There is much to be said for legislation explicitly putting decisions to allow arms exports beyond legal challenge in the UK courts. This may sound shocking, but it’s not as if any rights of the subject are at stake here. No one is forcing anyone to work for or invest in firms such as BAE or Babcock International.

If you really want to compel the British defence industry to avoid Saudi Arabia and only supply such bastions of freedom as Cuba and Venezuela, feel free: but do it honestly, by voting for Corbyn and not by asking the courts to do your dirty work for you.

(Image: RDVRS)

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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