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Political Considerations Triumph Legal Obligations as Court of Appeal Dismisses Challenge to UK’s Arms Related Agreements with Israel
Ref.: 34.2008E
26، Nov 2008

As a Palestinian human rights organisation committed to the promotion and protection of human rights throughout the Occupied Palestinian Territory (OPT),Al-Haq is especially disappointed to inform you that the appeal in the UK case of Saleh Hasan v Secretary of State and Industry, heard on 21-22 October 2008 in the Court of Appeal, was dismissed on 25 November 2008.

In November 2007, the UK High Court of Justice initially denied the claim of Mr. Saleh Hasan, filed by Public Interest Lawyers (PIL) in cooperation with Al-Haq, requesting the UK government to clarify its position on its arms-related licensing agreements with Israel. In particular, the claim sought to require the UK government to reveal how it satisfies its own criteria that material sold under these agreements is not used in the commission of human rights abuses in the OPT.

In his written judgment, Mr. Justice Collins found that while the UK government could provide the information requested, it would involve a “considerable amount of work” and that through the Quadripartite Committee, the UK Parliament already exercised a sufficient level of oversight of arms-export licensing, making the claim unnecessary. The High Court therefore dismissed the claim. The Court of Appeal, however, found there to be strategic questions with regard to the High Court’s dismissal of the claim and granted an appeal on 11 February 2008.

The PIL position advocated throughout the course of the appeal, argued that the State has a public interest obligation under UK law to provide evidence demonstrating how licence applications are assessed in terms of their compliance with relevant human rights criteria. The court, however, determined that:

“the subject matter is generally sensitive, such that unguarded publication is likely to be on occasions damaging.  Parliamentary scrutiny, with a possibility of receiving information in closed session, is thus to be seen as preferable.”

Al-Haq is deeply concerned that such political considerations have triumphed over principled issues of law, and have undermined the importance of the common law obligation to disclose information in the public interest, particularly where it may pertain to the violation of Palestinian human rights.

Despite the dismissal of the appeal, PIL is of the view that public law in the UK must accept that in these exceptional public interest contexts a decision-maker should be required to give evidence of compliance with human rights guidelines, even if no particular individual may appear to be directly affected by the decision in question. Accordingly, PIL, with the full support and cooperation of Al-Haq and Mr. Saleh Hasan have decided that Saleh Hasan v Secretary of State and Industry is an appropriate case to take before the House of Lords, the supreme court of appeal in the UK.

In the interests of justice, this final appeal is of great significance. Al-Haq will continue to provide regular updates on the progress of the case. Should you have any questions, suggestions or concerns, please do not hesitate to contact Al-Haq directly.