Export Licences: High Court Judgment

Liam Fox Excerpts

Thursday 20th June 2019 Commons Chamber

[The Secretary of State for International Trade and President of the Board of Trade (Dr Liam Fox)]

With permission, Mr Speaker, I will make a statement about the High Court judgment on military export licences to Saudi Arabia.

Today, the Court of Appeal handed down its judgment following the appeal by Campaign Against Arms Trade against the divisional court’s decision in July 2017 to dismiss CAAT’s claim for a 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 between 9 and 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 our 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 them, 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 against it.

Today’s judgment is not about whether the Government have 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, which states 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.”

The 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 the risk of diversion. They provide a thorough and rigorous risk assessment framework for the reaching of 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, that means advice from the Foreign Secretary. Before the establishment of the Department for International Trade in 2016, the decision maker was the then Secretary of State for Business, Energy and Industrial Strategy. In July 2016, the responsibility passed to me.

So 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 breaches of international humanitarian law that are known to us; an understanding of Saudi military procedures; continuing engagement with the Saudis at the highest level; post-incident dialogue, including dialogue 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 non-governmental organisations and the United Nations, 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 the Government lost in the Court of Appeal judgment concerned whether we were under an obligation to make some overall assessment of whether there had been historical violations of IHL, including whether a pattern of violations could be discerned. Our approach is in line with the EU common position; it is 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 the 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 historical record of Saudi Arabia in respect of IHL. Our whole assessment has been infused with IHL considerations; indeed, everything has been 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 the context is 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 a decision maker could rely and, indeed, 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 whether there was a historical pattern of breaches of IHL 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 the Government 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 the 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 the 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 that might be used in the conflict in Yemen. As the Court of Appeal makes clear, different people may or may not approve of 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 is about whether the decision-making process was rational, and the judgment emphasises that there would not be only one answer on future risk if historical violations were found to have taken place; in other words, changing the process as set out by the Court does not necessarily mean 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 those criteria in a specific context, and I commend this statement to the House.

[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.

[Dr Julian Lewis (New Forest East) (Con)]

Do the Government accept that, as the years have rolled by since the 9/11 atrocities, it has become harder and harder to justify the closeness of our relationship with Saudi Arabia, but in defence of what the Government are trying to do, would it not be sensible for my right hon. Friend to have conversations with the Foreign Secretary, perhaps with a view to publishing a digest of some of the representations that we make to the Saudis in trying to keep them from straying further away from acceptable standards of international behaviour?

[Dr Fox]

The Foreign Secretary and I have answered numerous questions on this issue in the House of Commons, and we have certainly cited some of those incidents and been questioned on specific incidents in the House. On my right hon. Friend’s key point, I do not think the proximity or otherwise to 9/11 is the key determinant here; rather, it is whether Saudi Arabia acts as an important source of intelligence for this country in our shared combat against a global terrorism. It is a valuable partner in that particular battle and has helped to keep numerous UK citizens safe.

[Stewart Hosie (Dundee East) (SNP)]

I thank the Secretary of State for his statement and for giving me advance sight of it. I recognise that, under criterion 2c of the consolidated criteria, 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. I also recognise that the judgment is not about whether the Government made the right or wrong decisions, but about whether the decision making was rational. I also recognise the words from the 2017 ruling that there was

“anxious scrutiny—indeed…what seems like anguished scrutiny at some stages”

over the decision making process. However, that anxiety and anguish are as nothing compared to the civilians who have been on the receiving end of Saudi armaments since the war in Yemen began.

I also note that since that war started, the UK has licensed some £4.7 billion-worth of arms sales to Saudi Arabia in a conflict whose death toll is now approaching 100,000 people. So may I ask the Secretary of State two questions? The ruling means that the UK must retake its decision on the correct legal basis, taking into account past possible human rights abuses from Saudi Arabia. Will this Government now take seriously the deep concern, anguish and anxiety that there are substantial human rights abuses emanating from Saudi Arabia? Secondly, I was disappointed to hear him say that it was the Government’s intention to appeal. I understand the legal costs so far are somewhere over £100,000. May I ask him to respect the ruling today, not to proceed with an appeal, and not to throw good money after bad?

[Dr Fox]

The hon. Gentleman asks an important key question on the specifics. Of course, criterion 2c is a predictive element. We have to look at what we think the future risk is in granting licences, and we take into account all the information that we have had, not least since the last licensing period decision that we have looked at. That takes into account all the sources I have already given him. He asks about the wider issues. I want to make it clear to the House that in reaching the decisions, I have to rely on advice from those with specialist diplomatic and military expertise, but the law does not permit me, in taking these decisions on licensing exports of weapons, to take into account the UK’s strategic economic, social, commercial and industrial interests. These are very important issues, but there are areas of wider policy and they are not areas that I am allowed to take into account when I take these particular decisions.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I have some sympathy with the position that my right hon. Friend has set out the Dispatch Box today. He will recall that I have had, to say the least, the most profound reservations over the past three or four years about the Government’s policy in respect of what is happening in Yemen. However, he will also know that I have never called for an arms embargo for the simple reason that it would have little humanitarian impact. Does he appreciate that the Master of the Rolls, Sir Terence Etherton, said in his judgment today 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”?

That is the crux of the matter that is before the House today.

I say to my right hon. Friend and to the other members of the Government Front Bench that they should listen more carefully to what Parliament has said consistently in almost every debate on this matter over the past three years. As recently as Tuesday, there was a Westminster Hall debate marking the 70th anniversary of the arrangements that were made in respect of international humanitarian law. After all these investigations of breaches of international humanitarian law, the argument has been that it is wrong for Britain and one side of the conflict to mark their own homework. It is essential that such breaches are looked at by an accepted and impartial international force, such as the UN. If the Government had heeded the warnings from the House of Commons, they would not be in the position that they are in today.

[Dr Fox]

I agree with my right hon. Friend about the humanitarian costs involved in the conflict, and I also agree that there can be no military solution to this particular conflict. There can only be a negotiated and political solution. However, we do monitor allegations of IHL breaches, and we do take that into account when making decisions. Of course, the predictive nature of this process means that we have to look at the past pattern of behaviour, the information we have available, and what mitigations may have been put in place to ensure that any incidents are not repeated. We are unable to make absolute definitions about whether there has been a breach when we are not party to the full information, but we make those decisions based on the predictive element of criterion 2c and on the evidence that is available from both public and protected sources.

[Hilary Benn (Leeds Central) (Lab)]

The Government’s position is, frankly, inexplicable, because the Secretary of State referred to all the careful analysis that has been done, but anyone else undertaking an assessment of future risk—this goes to the heart of the point that the right hon. Member for Sutton Coldfield (Mr Mitchell) just raised—would look at the past behaviour of those using the weapons that we have sold to Saudi Arabia. As the Secretary of State well knows, others have done so, and the UN panel of experts found over three years ago that

“the coalition had conducted airstrikes targeting civilians and civilian objects, in violation of international humanitarian law”.

The Government cannot continue to say, “We’re sorry. We haven’t been able to make an assessment, but we are not sure that there is a risk about the future.” I will ask a direct question of the Secretary of State: is it the Government’s view that Saudi Arabia has engaged in activities that have breached international humanitarian law?

[Dr Fox]

I disagree with the premise of the question itself. The right hon. Gentleman says that the Government’s position is inexplicable, but it is not. We are following the EU and national criteria set out for arms exports, and we are following the EU common position. We look at all reports of potential breaches of international humanitarian law, but we must also take into account, by the nature of the predictive elements in criterion 2c, what we think the future risk will be based on, for example, any mitigations.

[Tom Pursglove (Corby) (Con)]

The Government have consistently maintained that this country has one of the strictest export control regimes of anywhere in the world, but on what grounds do they base those claims?

[Dr Fox]

The divisional court’s judgment set out in terms why we operate a robust system, and I explained in my statement that we have gone well beyond what I think is naturally expected under criterion 2c. We operate what I believe is the most robust arms export policy of anywhere in the world. We operate under the EU and national consolidated criteria and alongside the EU common position. I do not believe that anyone else operates a more robust policy.

[Diana Johnson (Kingston upon Hull North) (Lab)]

The Secretary of State has referred to the European common position several times. What is his assessment of the European countries that have decided to suspend arms exports to Saudi Arabia? Why does he disagree with their position?

[Dr Fox]

The hon. Lady asks a good question. We discuss matters with our European colleagues, including our German colleagues, at the highest level, and it is our policy to continue to apply the EU common position to licensing. We do not comment on the commercial arrangements that underpin the export of military equipment and services, which are, of course, confidential. Our European partners and others are entitled to deviate from the EU common position if they wish, but we intend to follow it.

[Nigel Huddleston (Mid Worcestershire) (Con)]

We all get emails from our constituents expressing concerns about the global arms trade. Will my right hon. Friend therefore assure me and my constituents that the UK does indeed have one of the most robust arms export regimes in the world? Does he share my wish that other countries had such robust regimes?

[Dr Fox]

I do wish that more countries shared the criteria that we and our European partners operate in this particular field. However, I also believe that countries are entitled to defend themselves. If we were to have no international rules around arms exports, the whole global arms industry would be a laissez-faire space in which many innocent citizens around the world would be denied the protections offered by our export licences.

[Wera Hobhouse (Bath) (LD)]

It is undeniable that the Government’s defiance in respect of the Court of Appeal ruling is disappointing. Given the public interest in the unfolding tragedy in Yemen, will the Secretary of State not at least acknowledge that there must be more transparency in how his Department deals with this issue? We understand the obvious sensitivities, but the public and the House deserve to understand how the Department is coming to its decisions.

[Dr Fox]

I have made it clear on a number of occasions how we come to decisions and the process of ministerial accountability in that. The Court of Appeal judged that the process needs to change in order to be lawful, but it also made the point that changing the process would not necessarily have led to different decisions from those arrived at by the Government.

I say to the hon. Lady that I took offence at the comments of the hon. Member for East Dunbartonshire (Jo Swinson), the Liberal Democrat spokesperson on this matter, when she said:

“Saudi Arabia is an enemy of British values, including human rights and the rule of law.”

Such sweeping generalisations show a lack of grasp of the detail and understanding of the complexities of international relations.

[Alex Chalk (Cheltenham) (Con)]

On the one hand, the Court of Appeal is saying that the British Government must investigate allegations of previous international humanitarian law violations before granting export licences but, on the other hand, the British Government are saying, “Look. That is very difficult for us to do, because some of these incidents take place in foreign countries thousands of miles away.” Does not the solution to this lie in the hands of the Saudi Arabian Government themselves? We must say to them, “If you want to buy our weapons, where allegations exist they must be properly and independently investigated, and those findings must be shared with us before licences are granted.”

[Dr Fox]

My hon. Friend makes an important point. The joint incidents assessment team was set up by the Saudi Government in February 2016 to help with that. It examines military activity in civilian areas to minimise possible civilian casualties and assesses the coalition’s rules of engagement. We have had input into that to ensure that the coalition is operating in a way that we would find acceptable.

Of course, we simply would not take that as being the end of the matter when it comes to information. As I have said, we look at a range of information from foreign Government sources, from our own Government sources, both those in the public domain and those that are restricted, and from NGOs and the media. It is in taking that complete picture that we are able to assess what we believe the risks to be, but we are always looking to see whether further sources of information may help to improve our decision making, alongside the decision making of our allies.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

I have just returned from the Court of Appeal, where I listened to the judgment. The judges, in paragraph 141, say there was a decision in 2016 no longer to apply criterion 2 on the checking of IHL. This resulted in 100,000 deaths. Who made that decision?

My Committees, the Committees on Arms Export Controls, have manifestly failed to hold the Government to account. We now need urgent reform of the Committees’ powers, including creating a standalone Committee. Will the Minister confirm that he will not allow the use of any existing open licences to coalition partners during this review?

Finally, after the arms scandals of the 1980s and ’90s we had the Scott inquiry, and we now need an independent judge-led or parliamentary inquiry not just on this particular issue but on the failings of our arms control system—taking it away from the political interference and political control of Ministers to a truly independent and world-class system, which we do not have at the moment.

[Dr Fox]

We are ultimately accountable in the courts, as we have been, and the divisional court was clear in its praise for how Government rigour was applied to this process. We are not in breach of the consolidated criteria, nor has the Court of Appeal said that. What the Court of Appeal said is that the process by which decisions are reached needs to change, and needs to take into account the possibility of international humanitarian law having been breached. To compare that, for example, to the incidents in the Scott report is simply not credible.

Of course, we will review all licences in light of today’s judgment, as we are required to do. That will include open licences.

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

The UK’s significant levels of arms production and exports is often justified by the need to protect jobs, and today we have been told that there is a risk of terrorism if we do not export arms to this appalling regime. Rather than being complicit in killing almost 100,000 Yemenis, if the Government really want to protect jobs, reduce the risk of terrorism and enhance the UK’s reputation around the world, why not stop Brexit?

[Dr Fox]

I have heard some really quite idiotic questions in my time in the House, but that one takes the biscuit.