Export Licensing: High Court Judgment

Barry Gardiner Excerpts

Monday 10th July 2017 Commons Chamber

[Barry Gardiner (Brent North) (Lab)]

I thank the Secretary of State for his statement and early sight of it. I know that he and the whole House will agree that the war in Yemen is a humanitarian tragedy. Thousands of people, including women and children, have been its victims both directly and indirectly through the loss of life-saving infrastructures such as hospitals and water supplies. All of us should, and do, mourn that keenly.

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?

[Dr Fox]

May I say, first, that I agree with the hon. Gentleman that Yemen is indeed a humanitarian disaster that is begging for a political solution, to enable us to carry out our diplomatic efforts and our humanitarian efforts? I doubt whether anyone in the House would disagree with that.

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.