Export Licences: High Court Judgment

Barry Gardiner Excerpts

Thursday 20th June 2019 Commons Chamber

[Barry Gardiner (Brent North) (Lab)]

I thank the Secretary of State for advance sight of the statement. This week, the House marked in debate the 70th anniversary of the Geneva convention and the 20th anniversary of the United Nation’s Security Council first putting on its agenda the protection of civilians in armed conflict. The irony of today’s judgment by the Court of Appeal is that the United Kingdom is the penholder at the Security Council for that mandate. We are supposed to be guardians of international humanitarian law, not the people found in breach of it.

The Court of Appeal’s ruling is a damning indictment of the Government’s handling of export licences to the Kingdom of Saudi Arabia. It finds that their handling has not been lawful. The Court found 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”.

Does the Secretary of State accept that this constitutes a clear breach of the Government’s legal obligations to assess an export destination country’s respect for human rights and fundamental freedoms and that under criterion 2c of the licensing criteria the Government should have carried out such an assessment and denied licences if there was

“a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”?

The Secretary of State has tried to excuse himself by pleading that this judgment is not about whether the Government have made the right or wrong decision, but about whether the decision-making process was rational. Surely even he must understand that if the decision-making process was not rational, the Government could have had no confidence that it was correct and that it therefore follows that he could have had no confidence that there was no material risk of these exports being used contrary to international humanitarian law.

That the Government have failed to carry out such assessments is a matter of national shame. I am afraid that the Secretary of State’s suggestion that there has been anxious scrutiny of these decisions looks threadbare. I welcome his announcement that there will be a suspension of the granting of new licences to the Kingdom of Saudi Arabia, pending the Government’s appeal, but that is not enough. Given that the process itself is flawed, will he confirm whether the same process has been used for exports to Bahrain and the United Arab Emirates, which are also involved in the Yemeni conflict? Will he confirm that he is also suspending all new licences to those countries?

The Opposition believe there should be an independent investigation into the Yemen conflict and that it is shameful that the Government should seek to appeal today’s judgment. We are also concerned that there should be no sudden upsurge in open licences to these countries as a way to bypass the suspension. Can the Secretary of State confirm that this will not be allowed?

During the legal proceedings in the case against the Government, it transpired that the Government had not been properly monitoring whether the Saudi-led coalition had been engaged in breaches of IHL and had refused to properly set out whether British exports or service personnel had been directly or indirectly involved in any breaches by the Saudi-led coalition, despite widespread evidence of airstrikes on non-military targets, double-tap bombing raids and the deaths of thousands of civilians. Can the Secretary of State tell the House categorically that there has been adequate monitoring of potential breaches of IHL such that no UK personnel could be implicated in any breach?

The Secretary of State is well aware that several other countries have suspended arms sales to the Kingdom of Saudi Arabia over concerns about those breaches in Yemen, including our European counterparts Germany and Denmark. He has suggested that it is his view that the Government approach is in line with the EU common position. What assessment has he made of international reports into possible breaches and what discussions has he had with his counterparts in Germany and Denmark about the evidence upon which they have decided to suspend arms sales?

The Secretary of State, in his response to the claims brought forward by the Campaign Against Arms Trade, has stated that the Government monitor potential breaches in a number of ways, including a Ministry of Defence recording tool, extensive on-the-ground military and diplomatic staff, positive close relations with Saudi Arabian officials, and the findings of the 14 investigations by the Saudi-led coalition into whether they themselves had committed any such breaches. It subsequently transpired during proceedings that the Ministry of Defence tracker may not have been recording such data, so the Secretary of State’s review of potential breaches of international humanitarian law seems to be entirely determined by what his Saudi Arabian counterparts have advised him. At what stage did he first become aware that the Ministry of Defence tracker programme was not recording such breaches? Can he confirm whether his Department was aware that such breaches were not being reviewed or recorded?

The Court of Appeal has determined that the Secretary of State must retake the export licence decisions and must therefore conduct a conclusive review of past violations of international humanitarian law in advance. Can he confirm that he intends to adhere to the Court’s findings, and will he tell the House what steps he is taking to conduct such an investigation? Given the serious breach of this Government’s duty of care with regard to export licences, we believe that there are clear grounds for a thorough investigation into the Government’s handling of them, and that there must be a full parliamentary or public inquiry to find out how that was allowed to happen and which Ministers were responsible for those breaches.

I note that several times in his statement the Secretary of State was keen to finger the former Foreign Secretary as the one with the “specialist, diplomatic and military knowledge” whose advice he was obliged to take under criterion 2c of the consolidated criteria. The House may be surprised to learn of that official description of the right hon. Member for Uxbridge and South Ruislip (Boris Johnson). Can the Secretary of State explain, given that he has previously assured the House that he will

“personally lead on helping the defence and security industries to export and will be involved in the most significant global deals across all sectors”,

why he does not take full responsibility himself?

[Dr Fox]

The House has grown accustomed to the outraged tone of the hon. Gentleman, but it does not actually reflect the balanced tone of the judgment. He said in his questions that this country had been found in breach of international humanitarian law. I find that outrageous, coming from the official Opposition of this country, and I hope that he will retract it. I think the record will show that that is completely untrue. It is an outrageous slur on this country.

The hon. Gentleman raised a number of valid and important questions, and I shall try to take them in turn as best I can. He asked about open licences. They are subject to the same scrutiny, and sometimes take between two and five months to pass, so they are not a means of bypassing the scrutiny set out in the consolidated criteria. I think that the House will be clear on that. As to how we look at existing licences, and at licences elsewhere, I have made it clear that we will review all licences in the light of the Court’s judgment. It is worth noting, however, that the Campaign Against Arms Trade did not seek an order to suspend licences, and that the Court has not ordered that in its judgment.

The hon. Gentleman asked about how the UK monitors international humanitarian law allegations. The Ministry of Defence monitors incidents of alleged IHL violations arising from airstrikes conducted by the Saudi-led coalition in Yemen using all information available. This in turn is used to determine an overall view on the approach and attitude of the coalition. It informs the risk assessment made under the licensing criteria, where there is a clear risk that the items to be exported might be used in the commission of a serious violation. We consider a range of information from Government sources, foreign Governments, the media and international non-governmental organisations. We are now carefully considering the detail of the Court of Appeal judgment and its implications for this risk assessment and for decision making.

The hon. Gentleman asked about our discussions with the Germans. We of course have ongoing discussions with our European partners, but let me be clear that we are following the consolidated guidelines and the common EU position on this. I can tell him that there has been no breach in the duty of care in how the Government have approached this, and I make no allegations about any colleague, but I am not surprised that the hon. Gentleman has tried to drag personalities into this serious debate on such serious international issues. If there has been a breach of duty in this House, it is the breach of scrutiny by the Opposition.