Export Licences: High Court Judgment

Baroness Northover Excerpts

Thursday 20th June 2019 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

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 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?

[Baroness Northover (LD)]

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?

[The Earl of Courtown]

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.