Anonymized Summary of the Opinion

Factual and Procedural Background

This matter concerns an application for permission to appeal against a refusal by a lower court to grant permission to apply for judicial review of a government decision. The Plaintiff is an independent human rights organisation. The Defendant is the Secretary of State responsible for export controls under the Export Control Act 2002 and subsidiary instruments (including the Export Control Order 2008).

The operative executive decision at issue was taken on 2 September 2024. The Defendant decided to suspend export licences for certain military and dual‑use equipment to State B, but expressly excluded from that suspension licences authorising the supply of components for a combat aircraft (referred to in this summary as "Aircraft A") that form part of an international collaborative defence programme ("Program A"). Components supplied from State A formed part of a pooled global spares arrangement ("Pool A"). The exclusion of Aircraft A components from the suspension is referred to in the opinion as "the Aircraft A Carve Out".

The Plaintiff commenced judicial review proceedings in December 2023 and thereafter sought to challenge the Aircraft A Carve Out. There was a hearing before a Divisional Court in May 2025 and the Divisional Court issued an open judgment dated 30 June 2025 refusing permission to apply for judicial review in relation to all grounds. An additional closed judgment dated 20 June 2025 was produced but the appellate judge read it and determined it was not relevant to the permission stage now before the court.

On 8 August 2025 an appellate judge (referred to below as Judge Andrews) made an order referring three identified grounds of appeal (labelled grounds 1, 2 and 5 in the material) to an oral hearing and refusing permission on other grounds (including ground 3). The present judgment follows an oral hearing of the application for permission to appeal as to grounds 1, 2 and 5, an application to reopen the earlier refusal in relation to ground 3 under CPR 52.30, and an associated application by the Plaintiff for a Costs Capping Order (CCO) should permission to appeal be granted.

Legal Issues Presented

1. Whether the Strategic Export Licensing Criteria ("SELC") created a sufficient "domestic foothold" to permit domestic courts to interpret and apply international obligations relied on by the Plaintiff (ground 1).
2. Whether the customary international law obligations relied upon by the Plaintiff (including obligations to ensure respect for the Geneva Conventions, to prevent genocide, and not to facilitate internationally wrongful acts) have been received into, or are essentially reflected in, the common law (ground 2).
3. Whether the Divisional Court erred in concluding that determining the core international‑law issues (referred to as Ground 8 in the lower court) would require adjudication upon the lawfulness of State B's conduct and was therefore non‑justiciable (ground 5).
4. Whether the order refusing permission to appeal on ground 3 should be reopened under CPR 52.30 (the test for reopening appeals), and if reopened whether there is a real prospect of success on that ground (application to reopen ground 3).
5. Whether, if permission to appeal were granted, a Costs Capping Order (CCO) should be made capping each party's potential liability for costs.

Arguments of the Parties

Appellant's Arguments

• The SELC provided a domestic policy framework that created a "domestic foothold" allowing the court to interpret and apply unincorporated international obligations in relation to the Aircraft A Carve Out.
• The customary international law obligations relied upon (respect for the Geneva Conventions, prevention of genocide, and a duty not to facilitate internationally wrongful acts) are part of or reflected in the common law and thus justiciable.
• The decision‑making process used by the Defendant (including the methodology used to assess State B's compliance with international humanitarian law) was procedurally and substantively flawed and irrational; in particular, the Plaintiff argued that the methodology used in this context was inadequate and had been excluded from challenge at an earlier interlocutory stage by a different judge.
• The Divisional Court's determination that the claim would require the court to adjudicate the lawfulness of State B's conduct was said to be incorrect because the Plaintiff relied on the Defendant's own assessment of risk rather than advancing a primary contention about State B's conduct.
• The Plaintiff argued there were compelling reasons of public law and public interest for the appellate court to hear the appeal on the stated grounds, and sought a CCO if permission were granted.

Respondent's Arguments

• The Aircraft A Carve Out was taken for compelling national and international security reasons: suspending exports of Aircraft A components to Pool A would cause significant disruption to Program A and thus have a critical impact on international peace and security, undermine allied confidence, and produce adverse geopolitical effects. Advice to that effect was given to the relevant Secretary of State by the Defence Minister (referred to in this summary as "Minister D").
• The SELC expressly allowed the executive to adopt specific measures announced to Parliament which could be outside the ordinary application of the SELC criteria, and the Aircraft A Carve Out was such an exceptional, specific measure.
• The factual finding that the Defendant did not purport to apply SELC to the Carve Out was open on the evidence; therefore there was no domestic policy foothold to allow the court to decide the international‑law questions posed.
• The customary international law arguments were not established on the evidence and, in any event, there are constitutional reasons why such obligations should not be received into the common law so as to constrain executive judgment in defence and foreign relations.
• The Divisional Court's review of the decision‑making process was rigorous and the decision to exclude Aircraft A components from suspension was within the executive's margin of appreciation and not irrational; the court should show a high degree of deference on national security and foreign relations matters.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in two linked phases: first addressing the application to reopen the earlier refusal to grant permission on ground 3 under CPR 52.30, and then considering whether the three grounds (1, 2 and 5) referred to an oral hearing had any real prospect of success.

Application to reopen ground 3 (CPR 52.30)

The court identified the statutory test in CPR 52.30 and relied upon the authority governing reopening (Case C). The appropriate inquiry was whether the judge whose decision was sought to be reopened had engaged with and grappled with the point, and if so whether there was an exceptional mistake such that reopening was necessary to avoid real injustice.

Applying that test, the court found that Judge Andrews had plainly grappled with the point and had provided detailed reasons for dismissing ground 3 as unarguable. The court examined the reasoning given by Judge Andrews (quoted at length in the opinion) and concluded there was no exceptional misunderstanding or other exceptional mistake that would justify reopening. The court also concluded that the essence of the respondent's position had remained consistent throughout the proceedings (namely that, whatever the risk of non‑compliance by State B with international humanitarian law, the countervailing security reasons for the Carve Out prevailed). For these reasons the court refused to reopen ground 3.

Analysis of grounds 1, 2 and 5 (real prospect of success)

The court emphasised that its review at the permission stage required an assessment of whether each referred ground had a real prospect of success. The court first recorded the Divisional Court's factual finding that the Defendant did not purport to apply SELC to the Aircraft A Carve Out but instead treated the Carve Out as an exceptional, specific measure taken outside the framework of the SELC policy. That finding was made after consideration of the terms of SELC and contemporaneous documents and was described as a finding of fact open to the Divisional Court on the evidence.

On ground 1 (domestic foothold): the court accepted that even if SELC could in some circumstances provide a domestic foothold, that could only arise where the Secretary of State had purported to apply the SELC guidance. Because the Divisional Court had found (as a factual matter) that SELC was not being applied to the Carve Out, there was no domestic foothold in this case. The court emphasised the well‑known limitations on appellate courts revisiting findings of fact and concluded there was nothing to justify overturning the Divisional Court's fact findings on this point.

On ground 2 (customary international law and reception into the common law): the court set out the two‑part test identified by the Divisional Court — (i) the Benkharbouche test for customary international law (widespread, representative and consistent state practice accepted as law); and (ii) the absence of a positive constitutional reason not to receive the rule into the common law. The court accepted the Divisional Court's analysis that the evidence did not demonstrate the required state practice for reception of the particular customary obligations relied upon by the Plaintiff. Even assuming arguendo that the obligations formed part of international law, the court accepted the Divisional Court's conclusion that there were positive constitutional reasons (relating to parliamentary legislation implementing relevant treaties and the constitutional allocation of responsibility for defence, national security and foreign relations to the executive) not to receive the disputed obligations into the common law in a way that would fetter the executive's judgment in this area.

On the ultra vires point linked to ground 2, the court considered the Smith principle (Case B) and concluded that the Plaintiff's reliance upon it was overly expansive; the Carve Out did not create the alleged grave risk of facilitating serious criminal offences that would engage the presumption in the manner contended for.

On ground 5 (act of state/justiciability): the Divisional Court had described the core case as involving assertions about the lawfulness of State B's conduct under international law. The court explained that, because of the factual finding that SELC had not been applied and the broader non‑justiciability analysis (including the tenability approach to judicial review of executive international‑law assessments), the ground did not provide a realistic route to succeed on appeal. The court reiterated that the doctrine of foreign act of state and the need to avoid adjudicating the lawfulness of another state's conduct weighed against justiciability in the circumstances described by the Divisional Court.

Throughout its reasoning the court emphasised deference to executive judgments on national security and foreign relations, the limited scope for appellate intervention on findings of fact, and the absence of compelling evidence to displace the Divisional Court's conclusions. The court also addressed whether there was any other compelling reason to hear the appeal (for example to clarify the law) and concluded there was not: even assuming the appellate court might frame some points of justiciability differently, the present appeal had no real prospect of success and there were no pending cases demonstrably dependent upon the issues such that guidance from this court was required.

Holding and Implications

PERMISSION TO APPEAL REFUSED.

Consequences and implications:

• The application to reopen the prior refusal in relation to ground 3 under CPR 52.30 was dismissed: there was no exceptional mistake warranting reopening and no real injustice that would be remedied by reopening.
• None of the three grounds referred to an oral hearing (grounds 1, 2 and 5) was found to have a real prospect of success; therefore permission to appeal on those grounds was refused.
• Because permission to appeal is refused, the ancillary application by the Plaintiff for a Costs Capping Order did not arise and was not determined.
• The court emphasised that its decision did not set a new broad precedent on the substantive interaction between SELC and unincorporated international law beyond the specific factual and legal context of this case; the court declined to grant permission on grounds where it concluded there was no realistic prospect of success.
• The decision of the Divisional Court dated 30 June 2025 (refusing permission for judicial review) therefore stands. The panel recorded agreement by the two additional judges who sat with the lead judge (identified in the opinion as Judges Whipple and King) that they agreed with the reasons for refusal.

Note on anonymization: All persons, specific official titles, and certain state names or programme names in the original opinion have been replaced with consistent, generic placeholders (for example Plaintiff, Defendant, Judge Andrews, "Program A", "Aircraft A", "State A", "State B" and "State C") in order to comply with the required anonymization protocol. The summary otherwise adheres strictly to the matters and reasoning set out in the provided opinion and does not add or infer material beyond that opinion.