Export Licensing: High Court Judgment

Part of the debate – in the House of Commons at 4:41 pm on 10th July 2017.

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Photo of Liam Fox Liam Fox The Secretary of State for International Trade and President of the Board of Trade 4:41 pm, 10th July 2017

With permission, Mr Speaker, I would like to make a statement on the High Court judgment on export licensing. We welcome the divisional court’s judgment today dismissing the claim by the Campaign Against Arms Trade for a judicial review of decisions regarding exports to Saudi Arabia for possible use in the conflict in Yemen. We are grateful to the court for the careful and meticulous way in which the evidence from both sides has been considered in reaching this judgment.

The judgment recognises the rigorous and robust processes that we have in place across Government to ensure that UK defence exports are licensed consistently with the Government’s consolidated EU and national arms export licensing criteria. These criteria give effect to an EU common position setting out rules for assessing military exports. They were introduced in October 2000 and last updated in March 2014. The consolidated criteria, used to assess each export licence application, cover: our international obligations, including sanctions; human rights and international humanitarian law; armed conflicts; regional peace and security; national security and the security of our allies; terrorism; risk of diversion; and the technical and economic capacity of the recipient country.

The claim challenged decisions not to suspend extant licences for the sale or transfer of arms or military equipment and to continue to grant new licences for such transfers. The judgment states that these decisions were lawful and rational. It describes the Government’s decision making about export licensing as

“highly sophisticated, structured and multi-faceted”.

We note the application to appeal and will continue to defend the decisions challenged. We remain confident that the UK operates one of the most robust export control regimes in the world.

The central issue in relation to defence 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 is, 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. We have sufficient information to carry out proper risk-based assessments against Criterion 2c. The situation has been kept under close review and to date we have not refused licences on Criterion 2c grounds because we have assessed—based on all the information available to us, including information not publicly available—that the clear risk threshold has not been reached. The judgment says that, on the evidence, we were rationally entitled to conclude that this threshold has indeed not been reached.

The exercise undertaken to inform these assessments has, in the words of the judgment,

“all the hallmarks of a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel, upon which the Secretary of State could properly rely”.

In addition to a considered analysis by the Ministry of Defence of allegations of breaches of international humanitarian law, there has been intensive engagement with the Saudis at the highest level, stressing the need to comply with international humanitarian law, to investigate all incidents of concern and ensure that lessons are learned. Through this engagement, and our long-standing relationship with the Saudis, the UK Government have developed a higher degree of insight into Saudi military processes and procedures adopted in Yemen than might be expected for a country that is not party to the conflict. We have also considered public commitments to comply with international humanitarian law made by the Saudis, and monitored and analysed developments on the ground.

Each of these strands takes into account a wide range of sources and analyses, including those of a sensitive nature to which other parties, such as non-governmental organisations and the UN, do not have access. Taken together, these strands of information and analysis, which are reviewed regularly by the Foreign and Commonwealth Office in comprehensive reports to the Foreign Secretary, have enabled Ministers to take informed decisions about the overall Criterion 2c position and individual export licence applications. They provide a sound basis on which the Foreign Secretary is able to advise me, as the Secretary of State for International Trade, on these points.

That the assessment has been that the issue of military exports to Saudi Arabia is “finely balanced” is seen by the judgment as instructive and points to the

“anxious scrutiny…given to the matter and the essential rationality and rigour of the process in which the Secretary of State was engaged.”

As the judgment states, on the basis of this information and analysis, we were rationally entitled to conclude that Saudi Arabia has put processes in place to secure respect for compliance with international humanitarian law, and that Saudi Arabia has been, and remains, genuinely committed to compliance with international humanitarian law. The Saudis have engaged and continue to engage constructively with the UK on these matters.

We do not receive this court judgment as a signal to do anything other than to continue to take our export control responsibilities very seriously. Our policy is to assess licence applications on a case-by-case basis against the rigorous tests set out in the consolidated EU and national arms export licensing criteria. We will not grant a licence if to do so would be inconsistent with these criteria. We will continue to keep the situation in Yemen under close scrutiny and base our export licensing assessments on the most up-to-date information and analysis available. If we assess that the clear risk threshold under Criterion 2c of the consolidated EU and national arms export licensing criteria has been reached, we will not hesitate to refuse export licences and suspend licences already in circulation. I commend this statement to the House.