PARLIAMENTARY DEBATE
Export Licensing: High Court Judgment - 10 July 2017 (Commons/Commons Chamber)
Debate Detail
The judgment recognises the rigorous and robust processes that we have in place across Government to ensure that UK defence exports are licensed consistently with the Government’s consolidated EU and national arms export licensing criteria. These criteria give effect to an EU common position setting out rules for assessing military exports. They were introduced in October 2000 and last updated in March 2014. The consolidated criteria, used to assess each export licence application, cover: our international obligations, including sanctions; human rights and international humanitarian law; armed conflicts; regional peace and security; national security and the security of our allies; terrorism; risk of diversion; and the technical and economic capacity of the recipient country.
The claim challenged decisions not to suspend extant licences for the sale or transfer of arms or military equipment and to continue to grant new licences for such transfers. The judgment states that these decisions were lawful and rational. It describes the Government’s decision making about export licensing as
“highly sophisticated, structured and multi-faceted”.
We note the application to appeal and will continue to defend the decisions challenged. We remain confident that the UK operates one of the most robust export control regimes in the world.
The central issue in relation to defence exports to Saudi Arabia in the context of the conflict in Yemen is Criterion 2c of the consolidated EU and national arms export licensing criteria—that is, that the Government will not grant a licence if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law. We have sufficient information to carry out proper risk-based assessments against Criterion 2c. The situation has been kept under close review and to date we have not refused licences on Criterion 2c grounds because we have assessed—based on all the information available to us, including information not publicly available—that the clear risk threshold has not been reached. The judgment says that, on the evidence, we were rationally entitled to conclude that this threshold has indeed not been reached.
The exercise undertaken to inform these assessments has, in the words of the judgment,
“all the hallmarks of a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel, upon which the Secretary of State could properly rely”.
In addition to a considered analysis by the Ministry of Defence of allegations of breaches of international humanitarian law, there has been intensive engagement with the Saudis at the highest level, stressing the need to comply with international humanitarian law, to investigate all incidents of concern and ensure that lessons are learned. Through this engagement, and our long-standing relationship with the Saudis, the UK Government have developed a higher degree of insight into Saudi military processes and procedures adopted in Yemen than might be expected for a country that is not party to the conflict. We have also considered public commitments to comply with international humanitarian law made by the Saudis, and monitored and analysed developments on the ground.
Each of these strands takes into account a wide range of sources and analyses, including those of a sensitive nature to which other parties, such as non-governmental organisations and the UN, do not have access. Taken together, these strands of information and analysis, which are reviewed regularly by the Foreign and Commonwealth Office in comprehensive reports to the Foreign Secretary, have enabled Ministers to take informed decisions about the overall Criterion 2c position and individual export licence applications. They provide a sound basis on which the Foreign Secretary is able to advise me, as the Secretary of State for International Trade, on these points.
That the assessment has been that the issue of military exports to Saudi Arabia is “finely balanced” is seen by the judgment as instructive and points to the
“anxious scrutiny…given to the matter and the essential rationality and rigour of the process in which the Secretary of State was engaged.”
As the judgment states, on the basis of this information and analysis, we were rationally entitled to conclude that Saudi Arabia has put processes in place to secure respect for compliance with international humanitarian law, and that Saudi Arabia has been, and remains, genuinely committed to compliance with international humanitarian law. The Saudis have engaged and continue to engage constructively with the UK on these matters.
We do not receive this court judgment as a signal to do anything other than to continue to take our export control responsibilities very seriously. Our policy is to assess licence applications on a case-by-case basis against the rigorous tests set out in the consolidated EU and national arms export licensing criteria. We will not grant a licence if to do so would be inconsistent with these criteria. We will continue to keep the situation in Yemen under close scrutiny and base our export licensing assessments on the most up-to-date information and analysis available. If we assess that the clear risk threshold under Criterion 2c of the consolidated EU and national arms export licensing criteria has been reached, we will not hesitate to refuse export licences and suspend licences already in circulation. I commend this statement to the House.
The question for the High Court was whether the Secretary of State was entitled to conclude that there was no risk that British weapons might be used in the commission of serious violations of international humanitarian law. Since the bombing of Yemen began in March 2015, the UK has licensed more than £3.3 billion of arms to the Saudi regime, including: £2.2 billion of ML10 licences, dealing with aircraft, helicopters and drones; £1.1 billion of ML4 licences, dealing with grenades, bombs, missiles and countermeasures; and £430,000-worth of ML6 licences, dealing with armoured vehicles and tanks.
The Secretary of State knows that indiscriminate use of air strikes, the destruction of a country’s means of food production and the targeting of civilians are all classed as war crimes under international humanitarian law. Does he recall that a United Nations panel of experts reported in January 2016 that Saudi Arabian forces had engaged in “widespread and systematic” targeting of civilians? Does he recall that, on 21 July last year, the Government corrected their previous declarations that they had no evidence of any violations, and that the Foreign Secretary stated in September last year that the Government’s new position was that they had been unable to make an assessment and that the Saudi authorities were best placed to make such an assessment? Does he accept that the Foreign Secretary was wrong to franchise out our obligation in this way, and that we, not the Saudis, have the duty to assess whether there is a risk that British arms sold to the Saudis might be used in contravention of international humanitarian law?
Does the Secretary of State recall that evidence revealed in the High Court in February this year showed that the civil servant at the head of export control had provided advice to a previous Secretary of State recommending that the UK suspend arms sales to Saudi Arabia
“given the gaps in knowledge about Saudi operations”?
Can he explain to the House why that recommendation was overruled by the then Secretary of State, the right hon. Member for Bromsgrove (Sajid Javid), who sits alongside him?
Does the Secretary of State agree that the Committees on Arms Export Controls should be set up in this Parliament without delay so that export licensing for arms sales can come under the necessary parliamentary scrutiny?
Does the Secretary of State agree that today’s judgment did not seek to rule on whether the Government were correct in concluding that there was no clear risk of a serious breach of international humanitarian law, but rather on whether, in so concluding, they had reached a decision that could be considered rational, given the procedures they had adopted and the evidence they had considered? Does he further accept that if those procedures themselves were defective, or the evidence the Government considered was insufficient, misleading or even simply not comprehensive, it follows that the decision, however rational within its own parameters, could be deeply flawed, and this country might be at grave risk of violating our obligations in international humanitarian law?
The Government relied on material they brought forward only in closed hearing. That evidence could not be seen or heard by the claimant—the Campaign Against Arms Trade—or its lawyers, Leigh Day. As such, the court ruling that the Government’s decision was a rational one, given the procedures and evidence they considered, was based on secret evidence, which it was impossible to challenge. Does the Secretary of State accept that the court judgment makes specific reference to the substantial body of evidence presented in open session, which in fact suggests that a clear risk does exist that British arms might be used in violation of international humanitarian law? Will he agree to make the evidence that was available only in closed session available to Members of this House on Privy Council terms or, indeed, to the Intelligence and Security Committee?
Does the Secretary of State agree that we would all wish this country not only to adopt the highest ethical standards and controls but to be seen to adopt them, and that it would be helpful if he could now give his assurance to the House that it is his considered view that not only were the Government rational in adopting the view they did, given the procedures they followed and the evidence they considered, but that there is, to his certain knowledge, no risk whatever that UK arms might be used by Saudi Arabia in the Yemen war in any way that might constitute a violation of our obligations in international humanitarian law?
The hon. Gentleman was not quite accurate in terms of what the court case was about. There were three grounds of challenge in court: first, failure to ask the correct questions and to make sufficient inquiries; secondly, failure to apply the suspension mechanism; and, thirdly, irrationally concluding that there was no clear risk under Criterion 2c. All these grounds have been dismissed by the court.
The hon. Gentleman makes the point about targeting. As a former Defence Secretary, I say to him that the MOD has gone to the nth degree to improve the ability of the Saudis to target more effectively, including through training by UK personnel. That is one of the biggest advances we have helped the Saudis to make in this.
The hon. Gentleman says that the UN and the NGOs had set out their own reservations about what had happened, but as the judgment made clear, they did not have sight of all the information that the judges were able to look at. He said there were gaps in the Government’s knowledge, but the court again made it clear that the Government had not only the ability to assess what the gaps in that knowledge might have been, but the appropriate means of redressing that. I remind him that the criteria we operate are part of the EU consolidated criteria—they are not UK Government unilateral criteria.
I take exception to the hon. Gentleman’s final point. I simply do not accept that if we have closed sessions it somehow makes the judgment less valid. I do not accept that we cannot have closed sessions that protect our national security or the personnel involved in our national security. Our sources need to be protected. I listened to the argument he makes but I simply cannot bring myself to accept it.
Amnesty International, Human Rights Watch and other human rights campaign groups believe that UK and US weapons have been used against Yemeni civilians. As things stand, 10,000 civilians have been killed, 50,000 wounded and 3 million displaced. Today’s judgment raises a number of questions. We pay tribute to Campaign Against Arms Trade, which has taken the Government to court and forced them to explain themselves. We acknowledge CAAT’s plan to appeal this decision and wish it well, but the UK Government should be coming to this house with the facts at all times, not having to be dragged through the courts for the public to get a full explanation.
Does the Secretary of State accept that it cannot be beneficial if the public lose confidence in the Government over their relationship with a supposed ally—one that is in flagrant breach of international humanitarian law in Yemen? Let us not forget that Saudi Arabia, the UK’s largest weapons client, has bought more than £3 billion-worth of British arms in the past two years. UK and EU arms sales rules state that export licences cannot be granted if there is a “clear risk” that the equipment could be used to break international humanitarian law.
The Secretary of State says that he takes this very seriously. He will know that our former colleagues Angus Robertson and Tasmina Ahmed-Sheikh were strong advocates for the re-establishment of the Committees on Arms Export Controls, which the UK Government promised before the election would be reconvened. When will that happen, and when will the first meeting take place? Can he give us categorical assurances that the election does not mean that such an important Committee will be kicked into the long grass?
The hon. Lady talks about the “clear risk” test. The judgment could not have been clearer that the Government met the “clear risk” test of criterion 2c in the way they carried this out.
On the hon. Lady’s point about the Committees on Arms Export Controls, I have absolutely no objection to such a Committee being set up. In fact, I think it is beneficial to us to ensure at all times the highest reputation of our probity in these matters. I would have absolutely no objection whatsoever to such a Committee being in place.
“I am concerned that the issue…continues to be finely balanced... I ask that you commission a further detailed assessment…and send me updated advice”,
and
“that you seek advice from”
senior Government lawyers “before making your recommendation.”
Why was the International Trade Secretary anxious? Was it because of the civilian deaths, the use of cluster bombs or the attacks on humanitarian supplies in operations, including water and sanitation supplies that could have been so critical in preventing the cholera epidemic?
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