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Export Licences: High Court Judgment

Volume 798: debated on Thursday 20 June 2019


My Lords, with the leave of the House, I shall now repeat a Statement given earlier today by my right honourable friend the Secretary of State. The Statement is as follows:

“Today, the Court of Appeal handed down its judgment following Campaign Against Arms Trade’s appeal against the Divisional Court’s decision, in July 2017, to dismiss CAAT’s claim for judicial review of licensing decisions about military exports to Saudi Arabia for possible use in the conflict in Yemen. The case was heard by the Court of Appeal from 9 to 11 April this year. The original judicial review and the appeal relate to decisions made between December 2015 and February 2017.

Since the Divisional Court’s judgment in July 2017, the Government have continued to apply the rigorous and robust multi-layered process of analysis in making their licensing decisions, as highlighted in that judgment. We have, in the words of the 2017 judgment, engaged in,

‘anxious scrutiny—indeed … what seems like anguished scrutiny at some stages’.

The Government have always taken their export control obligations very seriously and continue to do so.

There were three grounds of appeal. The judgment found in the Government’s favour on two of these grounds and against on the other, referred to as ground 1. We disagree with the judgment against the Government on ground 1 and will seek permission to appeal the judgment.

Today’s judgment is not about whether the Government made the right or wrong decisions about granting export licences, but concerns the rationality of the process used to reach decisions. The process was upheld by the Divisional Court in July 2017. The central issue in relation to military 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 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’.

These criteria provide the rules for assessing military exports. Among other things, they cover concerns about human rights and international humanitarian law; the development of weapons of mass destruction; international obligations, including sanctions and treaty commitments; and risk of diversion. They provide a thorough and rigorous risk-assessment framework for reaching licensing decisions.

As the judgment makes clear, the Secretary of State responsible for licensing decisions has,

‘to rely on advice from those with specialist diplomatic and military knowledge’.

In relation to Criterion 2c, this means advice from the Foreign Secretary. Before the establishment of DIT in July 2016, the decision-maker was the then Secretary of State for Business. From July 2016, the responsibility passed to me.

How have decisions been made under Criterion 2c? We have used six strands of information and analysis to inform decisions: analysis of all allegations of IHL breaches known to us; an understanding of Saudi military procedures; continuing engagement with the Saudis at the highest level; post-incident dialogue, including with respect to investigations; Saudi public commitments to IHL; and regular IHL assessments based on developments in the conflict in Yemen. Each of these strands takes into account a wide range of sources and analysis, including those of a sensitive nature to which other parties, such as NGOs and the UN, do not have access. Taken together, these strands of analysis and information, which are reviewed regularly by the FCO in comprehensive reports to the Foreign Secretary and which engage continuously with the record of the Saudis in relation to IHL, form the basis of the Foreign Secretary’s advice to the Secretary of State making licensing decisions.

Given all this, why did CAAT appeal the 2017 judgment? The ground on which we lost in the Court of Appeal judgment concerned whether we were under an obligation to make some overall assessment of whether there had been historic violations of IHL, including whether a pattern of violations could be discerned. Our approach is in line with the EU common position. It has therefore focused on a predictive evaluation of risk as to the attitude and future conduct of the Saudi-led coalition and recognises the inherent difficulties of seeking to reach findings on IHL for specific incidents where we do not have access to complete information. Indeed, the Divisional Court pointed to the “self-evident impracticality” of doing so. Even so, we have fully and robustly engaged with incidents of concern and sought to test and understand the risk of future incidents. We have all along considered the historic record of Saudi Arabia in respect of IHL. Our whole assessment has been infused with IHL considerations. Everything was looked at through the prism of IHL.

Today’s judgment is clear that the context is not one in which the Government are sitting like a court adjudicating on alleged past violations, but rather, in the context of a prospective and predictive exercise, as to whether there is a clear risk that exports might be used in the commission of a serious violation of IHL in the future. In this context, past incidents are only part of the picture. The judgment emphasises that government advisers were keenly alive to the question of possible violation of IHL. It also acknowledges that the processes used to advise the Secretary of State responsible for licensing decisions were rigorous and robust, upon which the decision-maker could rely and had to rely.

Nevertheless, the judgment concludes that CAAT succeeded in the central argument advanced in relation to ground 1 of its appeal. In the court’s judgment the question of whether there was an historic pattern of breaches of IHL was a question which was required to be faced. Even if it could not be answered with reasonable confidence for every incident, at least the attempt had to be made. Because we have not reached findings on IHL for specific incidents as part of our assessment of clear risk, under Criterion 2c, the Court of Appeal concluded that our decision-making process was irrational and therefore unlawful. The consequence is that we are remitted to reconsider our decisions in accordance with the correct legal approach.

As I said earlier, we disagree with this judgment and will seek permission to appeal. Alongside this, we are carefully considering the implications of the judgment for decision-making. While we do this, we will not grant any new licences for exports to Saudi Arabia and its coalition partners which might be used in the conflict in Yemen. As the Court of Appeal makes clear, different people may or may not approve the sale of arms to Saudi Arabia. The judicial review is not an appeal against the Government’s decisions on their merits.

Once again, I stress that this judgment is not about whether the Government made the right or wrong decisions, but whether the decision-making process was rational. The judgment emphasises that there would not be only one answer on future risk if historic violations were found to have taken place. In other words, changing the process, as set out by the court, does not necessarily mean that any of the decisions would be different. The context is a complex and ever-changing conflict. The Court of Appeal judgment does not undermine the UK’s overall framework for export controls as set out in the consolidated criteria. These criteria have stood the test of time and are shared by EU member states. The court’s judgment is about how decisions were made in relation to one element of one of these criteria in a specific context. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I am very grateful to the Minister for repeating the Statement made in another place. I recognise that it is a complex area for which he may not have the full briefing at his fingertips, and I shall not be pressing him too hard on some of its more exotic elements, including the question of whether or not the Ruggie principles have been adapted and successfully applied in this case.

The Statement ends with a rather interesting point:

“The Court of Appeal judgment does not undermine the UK’s overall framework for export controls as set out in the”,

EU consolidated criteria. These criteria have been there for some time and are,

“shared by EU member states”.

I put it to the Minister that that cannot be quite correct, because I understand from reading press reports that Germany and Denmark, which are both members of the EU, have in fact decided to withdraw sales of arms to Saudi Arabia. So, in a sense, different decisions have already been reached; this is not a universal position. Does he have any thoughts on that?

Secondly, as the Minister rightly points out, this is a judicial review. It is not a test of whether or not the policy adopted by Her Majesty’s Government is correct. We follow entirely on that point of view, but it leads to roughly the same position, which is that the Government have been given a pretty severe blow to their current workings. Errors in the process, to the legal mind at least, have been pointed out and will need to be looked at again. I am glad to hear that the granting of export licences has now been cancelled until such time as this is resolved. The issue of course will be uncertain until such time as any appeal is launched and heard. Could the Minister say a bit more about that? It is being reviewed, but this will obviously affect how things go forward, so does he think that it is likely?

The key factor in the finding is that the Government,

“made no concluded assessments of whether the Saudi-led coalition had committed violations of international humanitarian law in the past, during the Yemen conflict, and made no attempt to do so”.

Irrespective of whether or not the end result would be the same, the fact that the Government have no concluded assessments is the reason why the judgment has been overturned in the Appeal Court. In a sense, that is probably all that needs to be said on that, except that there is a question of whether it raises any issues about the broader context in which these decisions are reached.

We had a number of amendments down in Committee and on Report for the Trade Bill when it recently passed through your Lordships’ House which probed some of the issues being raised in the judgment today. It is, as the Minister said, a complex situation involving the Ministry of Defence, the Department for International Trade and the Foreign Office—it has recently been revamped following the formation of the separate department DfIT; previously BEIS was the lead body on the trade element. We received assurances that this was not only a very efficient and effective system but that it was effectively best in class in comparison with the rest of the world. Could the Minister confirm that that is still the view of Her Majesty’s Government on this issue, irrespective of the judgment, and that he is content that the present arrangements are robust and reliable?

Turning to the actual impact of the judgment, I have touched on the question of whether or not arms sales should be suspended if they are likely to be used in the Yemen conflict. The Minister has confirmed that that has happened. Therefore, could he follow up, given that that is the situation and there is an issue at stake here, on whether it might be appropriate to establish a public inquiry so that we can better understand the issues and make sure that lessons are learned? Will he comment on that?

My third point is a more complex one, and I will fully understand if the Minister does not have the information with him; he may wish to write to me. In press reports there is wide evidence of air strikes on non-military targets in Yemen. I refer to a recent Guardian article—it may not be his regular reading, but it is available on the web. It says that the British Government have in recent years,

“deployed RAF personnel to work as engineers, and to train Saudi pilots and targeteers—while an even larger role is played by”,

the private company,

“BAE Systems, Britain’s biggest arms company, which the government has subcontracted to provide weapons, maintenance and engineers inside Saudi Arabia”.

There is also a quote from the Channel 4 programme “Dispatches”, in which a BAE employee said:

“If we weren’t there, in seven to 14 days there wouldn’t be a jet in the sky”.

We are clearly supplying matériel not just to Saudi Arabia for the use of the coalition in the battles in Yemen; we are also supplying it to individuals, who are performing acts which might be considered to be in support of the work which has now been found to be illegal by the Court of Appeal. If that is the case and there are British personnel actively carrying out this work, is there not a danger that they might be prosecuted for what they are doing in the International Criminal Court? If so, could he confirm what Her Majesty’s Government’s position on that would be?

My Lords, I too thank the Minister for repeating the Statement.

The judges concluded that it was “irrational and therefore unlawful” for the Government to have made the export licensing decisions without making adequate assessment of whether past incidents amounted to breaches of international humanitarian law and whether measures subsequently taken meant that there was no longer a “clear risk” that future exports might breach such law. They said:

“The question whether there was an historic pattern of breaches of IHL ... was a question which required to be faced”.

Does the Minister agree that this clearly and obviously must be the case? The pattern of serious violations did not simply need to be “taken into account”, as the Divisional Court found; the Court of Appeal ruled that the pattern has to be properly assessed and considered. In other words, the question of whether Saudi Arabia has breached international humanitarian law has to be answered. Does the Minister not regard this conclusion as an extraordinary indictment—that the Government had not properly made such assessments, despite all the pressure on them to do so, not least in Parliament?

Does he note that the US Senate will be voting on more than a dozen resolutions today aimed at blocking the Trump Administration’s sale of weapons to Saudi Arabia? What is the view of the UK Government on that? Indeed, they say that others may come to other conclusions, but some of the same evidence may be available to them as well as to us.

The Government imply in the Statement that they are making adequate assessments—in which case, as part of that wider consideration, have they looked at what happened, for example, to Jamal Khashoggi? Are they taking note of the UN report, for example, which states that the Crown Prince of Saudi Arabia should be investigated over his murder because there is “credible evidence” that he and other senior officials may be liable for the killing? The UN special rapporteur says that the death of the journalist was “an international crime”. She says:

“It is the conclusion of the special rapporteur that Mr Khashoggi has been the victim of a deliberate, premeditated execution, an extrajudicial killing for which the state of Saudi Arabia is responsible under international human rights law”.

We are here looking at international human rights law and the extent to which Saudi Arabia adheres to it.

Have the Government also noted the imprisonment and execution of dissidents, including minors? Have they noted that Saudi-led forces have hit civilians, hospitals, schools and school buses in Yemen? We have asked questions about these attacks and have been assured that the Government did not think that international humanitarian law was broken. How could they say that if it was not properly assessed?

Like the noble Lord, Lord Stevenson, I note the decision of Germany and Denmark not to sell arms to Saudi Arabia. Again, I point to the evidence that they will be looking at, which will be similar to the evidence that we can see.

The Government are signing up to agreements on human rights—work led by the Dutch in the EU. How does this square with that? Does he recall that the International Relations Committee concluded that the UK Government were, if only just, on the wrong side in this matter—I note that the noble Lord, Lord Howell, is in his place?

Astonishingly, one strand to which the Government pay attention is Saudi Arabia’s public statements about its commitment to adhere to international humanitarian law. Surely the time has come to examine the evidence properly and in a disinterested way. If this is done, does the Minister not believe that the time has come to ban the sale of arms to Saudi Arabia?

My Lords, I thank the noble Lord, Lord Stevenson, and the noble Baroness, Lady Northover, for their questions. First, I correct one point he made. We have said that no new licences will be issued while we examine the findings of the judicial review. He mentioned a number of issues in the overall framework of the situation and drew attention, as did she, to what is happening with our colleagues in Europe, particularly Germany and Denmark. They have both introduced specific policies over and above the EU common position. Our view is that the common position provides us with a sufficient basis for decision-making. The noble Lord also mentioned the Trade Bill, which went through the House last year—and this year as well. I cannot take account of factors such as the UK’s strategic economic and social interests in reaching licensing decisions. Decisions are made on the basis of the consolidated criteria, which I listed in the Statement.

The noble Lord and the noble Baroness both referred to non-military targets. Any loss of civilian life must be abhorred in the strongest terms. With our close relationship with the Saudi Arabian Government, we can make those comments to them. We have regular meetings at many levels of government where our views on these matters are forcefully made. The UK military personnel in Saudi Arabia are not involved in the conflict. UK engineers are present under contract to maintain aircraft for the Royal Saudi Air Force. Our assistance is limited to addressing the specific threats faced by the Saudis. We are providing information, advice and training to help Saudi Arabia to respond to those threats. We have also shared with the Saudis techniques to minimise civilian casualties. The UK has a range of personnel deployed across the region, but all remain under UK command and control. The noble Lord also asked a specific question about UK personnel there. I will write to him with further detail.

The noble Baroness drew attention to arms sales by the United States of America. We will of course keep a close watch on what eventually happens in the United States—as will my colleagues in the department. She also mentioned the dreadful incident of the death of Mr Khashoggi. It is an appalling state of affairs that Mr Khashoggi died, but it has no relationship to the criteria for export sales. She asked me a number of other questions to which I shall reply to her in writing, if that is sufficient.

My Lords, the noble Baroness, Lady Northover, reminds us that this judgment has similarities with the recommendations of your Lordships’ International Relations Committee when we examined the subject some months ago. We then argued, as is implicit in the judgment, that this is a matter not of suspension but of process. In our report, we argued that there needed to be more rigorous checks on export licences in future, given particular horrific incidents in Yemen of a kind which, sadly, continue and have shocked the entire world. We also argued in that short report that we needed to be less reliant on Saudi and local sources for verification and inspection of incidents. In the Statement, the noble Earl mentioned the processes by which decisions are reached when terrible things happen on whether British armaments could be in any way involved. We took evidence to the effect that there was a rather heavy reliance on local reports from the Saudi region and the Saudi authorities, and suggested that that was too great and that other sources of checking and verification would be an improvement. Can the Minister assure me that, whatever the legal outcome of this process, with the appeal and all the rest, those common-sense moves for much more rigorous checks on export licences and less reliance on the say-so of authentication coming from Saudi Arabia itself will be made?

My Lords, I thank my noble friend, who has extensive knowledge of the subject, and specifically for his committee’s report. He asks the Government to look again at the whole question of the issue of licences. We will look carefully at that, as well as at the court judgment, which we will consider in particular over the next few weeks. As I said, we will also consider existing licences. We will review all the licences in the light of the court judgment, but the points he made are well taken and I will ensure that the department is aware of them.

My Lords, does not the Minister agree that it is at the very least unfortunate that, although we welcome the suspension of arms sales, the Government do so with ill grace and reluctance, instead of making it a positive part of policy in the overall context? Events in Yemen have been terrible, and we should be at pains to make it clear that we do not associate ourselves, even indirectly, with a regime which has played such a questionable role. Does not he further agree that this again underlines the point that arms are not just another export, with which we go ahead unless there is a very special reason not to? Arms are lethal. They are highly dangerous in an unstable world and we should embark on arms sales only where they further our foreign policy objectives in very specific and accountable terms.

My Lords, the noble Lord may remember that, in another guise, I was the Whip in both the FCO and the Department for International Development. I had to respond to a Question on the present conditions and the availability of relief in Yemen. The loss of life touched me deeply; what happened there is appalling. I note the noble Lord’s very good points but we are not standing still. This morning I spoke to the Minister, my noble friend Lady Sugg, about our activity in Yemen; she reminded me that, on 24 February 2019, my right honourable friend the Prime Minister announced that the UK would provide an additional £200 million in response to the humanitarian crisis in Yemen. Our total commitment is now £770 million. That is important because it provides vital food, water and medicine to those who need them most. Conditions are a little better than they were—for example, there is more access to the ports —but the logistics could not be described as perfect, to say the least.

My Lords, can the Minister be a little clearer about the impact of the Government’s decision not to enter into new contracts while the court case continues? Can he say whether that means that they will not make deliveries under existing contracts while the case is pending? That is rather important. After all, a number of these contracts are colossal and not all of them are delivered at the same time.

Secondly, will the Minister admit that your Lordships’ International Relations Committee was rather closer than the Government were to what turned out to be the ruling of the Court of Appeal? It would be helpful for the Government to say when your Lordships’ House gets something right. Will the prevention of further action on sales mean that we will not negotiate sales, instead waiting until after this case finishes to conclude and deliver them? Further clarification on those points would be rather helpful. I hope that the Minister will be able to do something about that.

Finally, will the department look carefully at the Minister’s response to the debate on our report and the two subsequent government written responses, and if any points in them are no longer true, will the Minister perhaps refresh them?

My Lords, I thank the noble Lord for his questions. He refers to the report from my noble friend’s committee; I was aware of it but I have not read it. I know that reports from such committees are highly regarded throughout the country and further afield. I will take back to the department his points on the report, particularly regarding any possible changes to Her Majesty’s Government’s response to it.

The noble Lord also mentioned the position on extant licences. As I said, we will review all licences in the light of the court’s judgment. He went further, asking about entering into more sales contracts; I do not have an answer for him on that, so I will have to write to him. We are not issuing any new licences but, as the noble Lord will be aware, these licences last for between three and five years, and many licences could have been issued some time ago. Also, many licences do not end up in arms sales.

My Lords, I want to take the issue a little wider than the noble Lord, Lord Stevenson, and my noble friend Lady Northover did. Does this judgment—or this case, for that matter—have any impact or bearing on British troops or advisers who are in Yemen or have been, or may be, deployed there? They could well be using equipment exported by virtue of the authority of these licences. If the noble Earl wants to write to me about that, I would welcome a letter.

I thank the noble Lord for his question. I will write to him on some of the finer details. As he is aware, and as I said, our assistance is limited to addressing the specific threats faced by the Saudis. We are providing information, advice and training, as well as sharing techniques, to help Saudi Arabia to respond to the threats. A range of UK personnel has been deployed in the area, as I said; I underline the fact that they all remain under UK command and control. The noble Lord asked a number of specific questions relating to our personnel; I will ensure that he gets a correct reply.

My Lords, I thank my noble friend for the Statement. I draw particular attention to his saying:

“We have all along considered the historic record of Saudi Arabia”,

on international human rights law. That was backed up in an International Relations Committee report. The Minister gave evidence, saying that the Government believed that they were on the “right side” of international humanitarian law, but the committee concluded that they were,

“narrowly on the wrong side”.

What sources were used to arrive at that judgment?

The international Human Rights Council commissioned a group of eminent experts to look at incidents. It looked at 110 attacks, including 11 on marketplaces and five on weddings and funerals, and concluded:

“Individuals in the Government and the coalition, including Saudi Arabia and the United Arab Emirates, may have conducted attacks in violation of the principles of distinction, proportionality and precaution that may amount to war crimes … Individuals in the Government and the coalition, including Saudi Arabia and the United Arab Emirates, have committed acts that may amount to war crimes, including cruel treatment and torture, outrages upon personal dignity, rape and conscripting or enlisting children under the age of 15”.

So, when Her Majesty’s Government concluded that they were on the “right side” of international humanitarian law, what sources did they use to arrive at that conclusion, and what was the veracity of those sources?

Finally, many of us have praised fully the role that Her Majesty’s Government have taken on as “penholder” in the UN Security Council negotiations on the peace process in Yemen. Martin Griffiths and Mark Lowcock are out there; Charles Garraway is part of a group of eminent experts. We have given £570 million in humanitarian aid. We feel immensely proud of all that. We feel that the perpetuation of the granting of these licences, against all the verifiable evidence, besmirches our reputation internationally. Does my noble friend accept that?

My Lords, I thank my noble friend for his question and for giving me prior warning of it. We have assessed the report and the judgment of the Court of Appeal does not accept that the UK military and other analysts and advisers wrongly discounted the evidence coming from NGOs and the UK panel of experts. The judgment accepts that the evidence was considered in each case as a whole, and concerns were raised. My noble friend went into more detail and asked how these allegations are monitored. The Ministry of Defence monitors incidents of alleged IHL violations arising from air strikes conducted by the Saudi-led coalition in Yemen using all available information. This is turn is used to form an overall view on the approach and attitude of the coalition to IHL. That informs the risk assessment under which the licensing criteria are set out. Where there is a clear risk that the items to be exported might be used for the commission of serious violations of IHL, we consider a range of information from government sources, foreign Governments, the media and international non-governmental organisations.

However, at the heart of all this are the peace talks, which are a top priority. There can be no military solution to the conflict. A political settlement is the only way to address the worsening humanitarian crisis and the UK is encouraging the parties to continue to engage constructively with Martin Griffiths, the UN special envoy and the head of the UN mission in Yemen, in support of the Hodeidah agreement.

My Lords, the Statement refers to the EU common position. Did the UK Government play an active part in drawing up that common position and did they make any attempt to weaken it before it was published?

I am afraid that I cannot answer the question put by the noble Baroness, but I will ensure that she receives the correct information by letter.