A high court judge has ruled a judicial review must be quickly heard on government claims that national security entitles ministers to sell parts for F-35 jets to Israel even though Britain accepts that there is a risk they will be used in breach of international humanitarian law.
The hearing will most likely take place in May – nearly seven months after the Labour government made the contentious decision to carve out F-35 parts from the ban on arms exports to Israel.
The exception was made by ministers in September when the government suspended arms export licences for any offensive weapons Israel could use in Gaza. They said there was a clear risk Israel was breaching international law in its treatment of Palestinian prisoners, and in restricting aid into Gaza.
Internal government correspondence revealed in Mr Justice Chamberlain’s judgment shows the defence secretary, John Healey, convinced the business secretary, Jonathan Reynolds, that the licence to sell UK F-35 components for use by Israel could not be withdrawn without significant effects upon the whole F-35 programme and Nato security.
He wrote: “Such a suspension of F-35 licensing leading to the consequent disruption for partner aircraft, even for a brief period, would have a profound impact on international peace and security.
“It would undermine US confidence in the UK and Nato at a critical juncture in our collective history and set back relations. Our adversaries would not wait to take advantage of any perceived weakness, having global ramifications.”
The government has admitted to the court without caveat that the F-35 parts could be used to break international humanitarian law.
Part of the evidence that Ministry of Defence officials have given to the court about the integration of the F-35 programme and its role in Nato in combating Russia has been kept closed.
But ministers have said the loss of UK components, some of which are exclusively supplied by the UK to the F-35 global spares pool, would have an effect in days, and in the event of a war with Russia lead to a lengthy land campaign due to the reduction in air power.
Ministers also claim contractually the UK could not withhold spares without a consensus to allow this in the Washington-based board that oversees the F-35 programme.
David Lammy, the foreign secretary, specifically acknowledged to the court that “Israel’s actions in Gaza continue to lead to immense loss of civilian life, widespread destruction to civilian infrastructure, and immense suffering”.
UK government lawyers have also told the court that Israeli F-35s do not assist Israel’s unlawful occupation of the Palestinian territories or help Israel to commit unproved acts of genocide.
The case has been brought by Palestinian human rights group Al-Haq alongside the Global Legal Action Network, but they have been joined by Oxfam, Amnesty International and Human Rights Watch. The case has been in the courts in various forms since December 2003.
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In September, the Labour government suspended about 30 licences after a review of Israel’s compliance with international humanitarian law in the ongoing conflict, after the previous Conservative government refused to do so in December 2023 and April and May 2024.
But an exemption was made for some licences related to components of F-35 fighter jets, and about 330 licences continued unaltered, which concerned items such as training and air defence equipment.
At a hearing in November, Al-Haq asked for permission to challenge the decision not to suspend all licences in September, the move to carve out licences for F-35 components from the suspension, and decisions by the former Tory government not to suspend licences.
Chamberlain said he was not minded to allow a challenge over the past Conservative government’s decisions but the carve out for F-35 parts should be heard at an expedited “rolled-up” hearing – where the case is heard and permission is decided at the same time – by the end of May.
He said: “The F-35 carve-out decision is one of considerable public importance in the UK and more broadly. There is a powerful public interest in a quick, final determination of its legality, one way or the other.”
He said he had heard no argument that the ceasefire in Gaza made the case irrelevant.
Shawan Jabarin, the general director of Al-Haq, said: “Gaza is destroyed, it is unlivable. Palestinians in Gaza have been killed and erased by weapons whose components are supplied to Israel by the UK government, acting in full knowledge of the consequences.”
