Research Briefing
By Louisa Brooke-Holland
30 November 2023

UK amends its criteria for arms
exports

Summary
1 What is the criteria?
2 Criterion one: respect for UK’s international obligations andagreements
3 Criterion two: respect for human rights and fundamental
freedoms
4 Criterion three: Preservation of internal peace and security
5 Criterion four: Preservation of peace and security
6 Criterion five: The national security of the UK and overseas
territories
7 Criterion Six: The behaviour of the buyer country with regard
to the international community
8 Criterion seven: Risk that items will be diverted or reexported
9 Criterion eight: The compatibility of the transfer with thetechnical and economic capacity of the recipient country
10 Other factors: Denial of licence if it may have a significant
negative impact on the UK’s international relations

commonslibrary.parliament.uk

Number 9494

UK amends its criteria for arms exports

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UK amends its criteria for arms exports

Contents
Summary

4

1

What is the criteria?

62Criterion one: respect for UK’s international obligations andagreements

13

3

Criterion two: respect for human rights and fundamental freedoms 15

4

Criterion three: Preservation of internal peace and security

18

5

Criterion four: Preservation of peace and security

21

6

Criterion five: The national security of the UK and overseas territories
23

7

Criterion Six: The behaviour of the buyer country with regard to theinternational community
25

8

Criterion seven: Risk that items will be diverted or re-exported

9

Criterion eight: The compatibility of the transfer with the technical andeconomic capacity of the recipient country
29

10

Other factors: Denial of licence if it may have a significant negative
impact on the UK’s international relations
30

3

27

Commons Library Research Briefing, 30 November 2023

UK amends its criteria for arms exports

Summary
In December 2021 the Government published a revised version of thelicensing criteria for strategic exports.
Any company wanting to export military or dual-use (that could have militaryor civilian use) goods to other nations must apply for a licence from theGovernment to do so. These are referred to as controlled goods or items,
and includes not just physical goods but also software and technology. The
list of goods which are controlled, and therefore require a licence for export,
are collated in the UK Strategic Export Control List (also called theConsolidated list of strategic military and dual-use items that require export
authorisation, and frequently referred to as the Consolidated List).
Over the last couple of decades the UK, and EU, developed a common set ofeight criteria to assess licence applications. These reflect, among otherthings, the UK’s obligations under international law, and the potential for theitems to be used in the violation of human rights. The Government last
updated what was called the “Consolidated EU and National Arms Export
Licensing Criteria”, or Consolidated Criteria for short, in 2014.
The UK’s exit from the EU was cited by the then International Trade
Secretary as one of the reasons for the need to revise the criteria.
References to the European Union and the EU 2008 common position havebeen removed from what is now called the Strategic Export Licencing
Criteria.
The risk of items being used to commit or facilitate gender-based violence or
serious acts of violence against women or children is more prominently
stated.
As well as amending the eight criteria, the written statement laying out thechanges also includes “other factors”, by which the Government “inexceptional circumstances” may decide not to grant a licence “where theitems may have a significant impact on the UK’s international relations.”
This paper briefly explains how the criteria fits into the UK’s strategic export
controls system and how the criteria have evolved, before comparing eachcriterion in turn with the 2014 version. It was first published in March 2022.
Commons Library paper UK Arms Export Statistics provides information on
licences granted.

4

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UK amends its criteria for arms exports

The new strategic export licensing criteria
Criterion 1
Respect for the UK’s international obligations and relevant commitments, inparticular sanctions adopted by the UN Security Council, agreements on nonproliferation and other subjects, as well as other international obligations.
Criterion 2
Respect for human rights and fundamental freedoms in the country of finaldestination as well as respect by that country for international humanitarian law.
Criterion 3
The Government will not grant a licence if, having assessed the potential that theitems would either contribute to or undermine internal peace and security, it
determines there is a clear risk that the items would, overall, undermine internal
peace and security.
Criterion 4
The Government will not grant a licence if, having assessed the potential that theitems would either contribute to or undermine peace and security, it determines
there is a clear risk that the items would, overall, undermine peace and security.
Criterion 5
The national security of the UK and territories whose external relations are the UK’s
responsibility, as well as that of friendly and allied countries.
Criterion 6
The behaviour of the buyer country with regard to the international community, asregards in particular its attitude to terrorism and transnational organised crime, thenature of its alliances and respect for international law.
Criterion 7
The existence of a risk that the items will be diverted to an undesirable end-user orfor an undesirable end-use
Criterion 8
The compatibility of the transfer with the technical and economic capacity of therecipient country, taking into account the desirability that states should achieve
their legitimate needs of security and defence with the least diversion forarmaments of human and economic resources. 1

1

5

HCWS449, 8 December 2021

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UK amends its criteria for arms exports

1

What is the criteria?

Any company wanting to export military or dual-use (that could have militaryor civilian use) goods to other nations must apply for a licence from theGovernment to do so.
These are referred to as controlled goods or items, and includes not justphysical goods but also software and technology.
A list of the controlled goods which require a licence for export is set out inthe UK Strategic Export Control Lists (also known as the consolidated list).
The Export Control Joint Unit (ECJU) is responsible for processing licenceapplications. It sits within the Department for Business and Trade, and it
draws together expertise from the Foreign, Commonwealth andDevelopment Office and the Ministry of Defence.2 The Secretary of State for
Business and Trade is responsible for arms export controls.
There are a range of licences available. This paper does not intend to discuss
the different types here.
The ECJU assess licence applications against certain criteria. These reflect,among other things, the UK’s obligations under international law, and thepotential for the goods to be used in the violation of human rights, forexample torture. The criteria has developed over several decades.

1.1

Evolution of the criteria
The need for greater controls over the export of arms came to the fore in the
1990s. In the UK, the recommendations of the 1996 Scott Report into the‘arms to Iraq’ scandal prompted a thorough review of the existing
framework. The incoming Labour Government in 1997 pledged not to permit
the sale of arms to regimes that might use them for internal repression orinternational aggression; to increase transparency and accountability andsupport an EU code of conduct governing arms sales. 3

2

3

6

Previously it was the Department for International Trade until it was merged with the Department
for Business, Energy and Industrial Strategy in February 2023 to become the Department for
Business and Trade.
Labour party election manifesto 1997

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UK amends its criteria for arms exports

At the same time, EU Member States recognised there was a considerable
divergence about the standards applied to arms exports.
These moves resulted in the adoption of new UK export licensing criteria in
1997 and the creation of a voluntary EU Code of Conduct on Arms Exports in1998 (which later became the 2008 Common Position on arms exports). 4 The
Government subsequently brought the two sets of criteria together in 2000
in what it called the “Consolidated EU and National Arms Export Licensing
Criteria” (more commonly known as the Consolidated Criteria).
In March 2014 the Coalition Government published a revised set of eight
criteria. 5 The Government said there was not any “substantive change” tothe policy. Rather, the criteria reflected new legislation and regulations (bothUK and EU) and reflected updates to the list of the UK’s international
obligations and criteria. An explicit reference to international humanitarianlaw was added to criterion 2.
At the time, the Government also explained how the criteria would beapplied. Namely, that they would be applied on a case-by-case basis rather
than mechanistically, and that they will not refuse a licence “on the groundsof a purely theoretical risk of a breach of one or more of those criteria”. 6
On 8 December 2021 the then Secretary of State for International Trade,Anne-Marie Trevelyan, announced a revised version of the criteria, to be
now known as the Strategic Export Licensing Criteria. 7

1.2

Why was the criteria changed?
The UK’s exit from the EU was cited by the International Trade Secretary as
one of the reasons for the revised criteria:
We keep our controls under regular review to ensure that they continue toproperly address the threats we face, keep pace with new technologies, andadapt to changing circumstances such as our exit from the EU, while providing
an efficient service which does not impose an unworkable administrative
burden on the defence and security industry. 8

4

5

6
7
8

7

HC Deb 28 July 1997 c27; “EU rules on control of arms exports”, European Parliament ResearchService, 7 November 2018 (accessed 21 February 2022)
HC Deb 25 March 2014 c14WS. Further detail of the evolution of the Consolidated Criteria can befound in Commons Library paper The legal and regulatory framework for UK arms exports,
SN02729, 4 September 2017
HC Deb 25 March 2014 c14WS
HCWS449, 8 December 2021
HCWS449, 8 December 2021

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UK amends its criteria for arms exports

Exiting the EU
The UK’s exit from the EU means the UK no longer needs to align the criteriawith that of the EU. In 2018 a collection of NGOs and research institutes,
including Amnesty UK, Oxfam and Saferworld, warned the Committees on
Arms Export Controls of the potential for UK and EU export criteria to “drift
apart over time”. 9 In subsequent oral evidence to the committees, discussing
the impact of leaving the EU, a senior Department for International Tradeofficial said: “there are no plans to change the criteria.” Chris Chew, Head of
Export Control Policy at DfIT, went on to explain that the Government would
want to consider how changing the criteria “would impact on our defence
relations with other states that were not changing their criteria, for example
the EU.” Chew gave as an example what that would mean in practice forcollaborative programmes with the EU and other partner states. 10
The new strategic export licensing criteria replaces the Consolidated EU andNational Arms Export Licensing Criteria of 2014. It removes reference to theEuropean Union and the 2008 Common Position.

1.3

Why is the Criteria important?
Successive governments have committed to what they describe as a robust
and transparent export control regime for military, dual-use and othersensitive goods and technologies. In its 2021 written statement, theGovernment says these controls are to “promote global security andfacilitate responsible exports”. For example, by ensuring the UK does notcontribute to the proliferation of weapons of mass destruction, or that they
are not used for internal repression or in the commission of serious
violations of international humanitarian law. Applying the criteria alsomeans, the Government says, that it is implementing international legal
commitments, such as the Arms Trade Treaty. The Government says thepromotion of the legitimate trade in items controlled for strategic reasons
helps support the UK’s defence and security industry. 11
A perennial issue surrounding arms exports is the inherent tension between
promoting arms sales whilst also voicing concerns about the end user,
especially if there are concerns about a country’s human rights record. CAAT,
an organisation that campaigns against the arms trade, has long articulated
such a view. In recent years CAAT has challenged the UK Government’s
decision to continue to licence the export of military equipment to Saudi
Arabia that might be used in Yemen, because of the latter’s military

9

10

11

8

Written evidence by Control Arms UK (UAE0007), “UK arms exports during 2016”, Committees on
Arms Export Controls, January 2018, published 21 February 2018, para 63-72
Committees on Arms Export Controls, Oral evidence: Arms Export Controls: Initial Review, HC 965,
10 November 2021, q52-54
HCWS449, 8 December 2021

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UK amends its criteria for arms exports

campaign there. CAAT’s case focused on Criterion 2c of the ConsolidatedCriteria.
There are concerns the revised criteria may make it easier for theGovernment to ignore human rights concerns. Martin Butcher, policy advisor
on conflict and arms for Oxfam, said the changes “would reduce
accountability and transparency and will lead to more UK arms being used tocommit war crimes and other abuses.” 12

1.4

Main revisions to the criteria
The risk of items being used to commit or facilitate gender-based violence or
serious acts of violence against women or children is explicitly cited as afactor to be considered in four criteria (2, 3, 4 and 6). Previously it was only
mentioned in criterion 2.
There is a shift in language and emphasis throughout the revised criteria.
Criterion 2, for example, replaces “a risk items might be used for” with “aclear risk that the items might be used to commit or facilitate” internal
repression or a serious violation of international humanitarian law.
Some of the focus of individual criteria has shifted. Criterion 3 uses thebroader term “undermine internal peace and security”, rather than thepreviously more specific “provoke or prolong armed conflicts or aggravate
existing tensions or conflicts”. The focus on “regional” peace and security
has been removed from criterion 4 (although it is still a factor). The “UK’s
defence and security interests” has been replaced with the “UK’s national
security” in criterion 5. Criterion 7 also has a shift in language, focusing moreon the risk of items being diverted to an “undesirable end-user” rather thanthe previously more specific “diverted within the buyer country” or reexported.
References to the European Union and the EU 2008 common position havealso been removed.
Whilst not a numbered criterion, the written statements from 2014 and2021 both included “other factors”. There are differences here. The 2014
version states that the UK can take into account the effect of proposed
exports on their economic, social, commercial and industrial interests, butthese factors “will not” affect the application of the criteria. The 2021
version allows the Government “in exceptional circumstances” to not grant alicence “where the items may have a significant impact on the UK’s
international relations.”

12

9“New rules on UK arms trade make it ‘easier’ to sideline human rights”, The Guardian, 12
December 2021

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UK amends its criteria for arms exports

1.5

Applying the criteria
The method by which the criteria will apply remains the same as laid out in
2014; namely, they will not be applied mechanistically but on a case-by-casebasis, and a licence will not be refused on the grounds of a purely theoreticalrisk of a breach.
Criteria 1-4 and Criterion 6a are mandatory, which means that if the risk
threshold under these criteria are met, the licence application must be
refused. 13 To illustrate, this means a licence will not be granted if:•

There is a clear risk that the items might be used to “commit or
facilitate” internal repression or a serious violation of international
humanitarian law (Criteria 2a and 2c).

•

There is a clear risk that the items would, overall, undermine internal
peace and security (Criterion 3) or regional/international peace andsecurity (Criterion 4).

•

The items could be used to commit or facilitate an offence underinternational conventions or protocols to which the United Kingdom isparty relating to terrorism or transnational organised crime (Criterion
6a). 14

Licences will be revoked “if extant licences are found to be no longer
consistent with the Criteria.” 15

1.6

Commentary on the new criteria
Some concerns have been raised about both the process and the content of
the revised criteria.
Control Arms UK, a coalition of NGOs 16, submitted written evidence on the
new criteria to the Committees on Arms Export Controls in early 2022.
Controls Arms UK concluded:

13

14

15
16

10

Committees on Arms Export Controls, Developments in UK strategic export controls, HC 282 202223, 28 October 2022, written evidence UKA0019, 4 July 2022
Committees on Arms Export Controls, Developments in UK strategic export controls, HC 282 202223, 28 October 2022, written evidence UKA0019, 4 July 2022
PQ51982 [Israel: West Bank], 29 September 2023
Control Arms UK describes itself as a coalition of non-governmental organisations, research
institutions and other civil society organisations working for effective controls on the internationalarms trade. The members of Control Arms UK for the purposes of this submission include Action
on Armed Violence, Amnesty UK, Omega Research Foundation, Oxfam, Saferworld, Shadow World
Investigations (formerly Corruption Watch UK) and United Nations Association-UK.

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UK amends its criteria for arms exports

Notwithstanding some improvements, we see significant problems withboth the substance of the changes, and the process for their development
and adoption. 17

Control Arms UK criticised the process, namely the lack of external
consultation, that it was Cabinet Office-led and that “no one outside ofgovernment was even aware the review was happening.”
Control Arms UK does welcome several amendments it describes as positive,
particularly in bringing the criteria more in line with the obligations
contained in the Arms Trade Treaty.
However, Controls Arms UK is “deeply concerned” about the changes madeto Criteria 3 (preservation of internal peace and security) and 4 (preservationof peace and security). Control Arms UK questions the rationale behind thechanges, suggesting it may be motivated by the ongoing legal challenge from
Campaign Against Arms Trade to licences issued for arms exports to Saudi
Arabia:Whereas the test previously rested upon answering the question: “is there aclear risk?” (of a named negative consequence), that test has been changed
formally to whether the government determines there is a clear risk. In
addition, the government can now legally approve licences despite thetransfer being a clear risk to peace and security if it determines this risk isbalanced by a countervailing potential positive influence on peace andsecurity. 18

Control Arms UK says it will make it harder for the Government to be held
accountable for the export licensing decisions it makes.
Control Arms UK is also concerned that the “other factors” section, whileneeding amendment, has now been drawn too narrowly. They argue “the UK
government should always have full discretion to refuse a transfer for any
reason it so decides.”Anna Stavrianakis, Professor of International Relations at the University of
Sussex, who specialises in the international arms trade, also suggests therevised criteria “weakens the effectiveness of controls”:
A key amendment [to the criteria] was the insertion of the phrase “if it [theGovernment] determines” to the risk assessment in Criteria 2, 3, 4 and 6. This
weakens the effectiveness of controls significantly by giving government freerein to ignore inconvenient evidence and narrowing the scope for future legal
challenges – both of which have been core features of the controversy overarms exports to the Saudi-led coalition involved in the war in Yemen. 19

17

18

19

11

Committees on Arms Export Controls, UK arms exports in 2019: written evidence UKA0017, 19
May 2022 (written evidence dated 26 January 2022)
Committees on Arms Export Controls, UK arms exports in 2019: written evidence UKA0017, 19
May 2022 (written evidence dated 26 January 2022)
Anna Stavrianakis, Missing in action: UK arms export controls during war and armed conflict (PDF),
World Peace Foundation, March 2022

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UK amends its criteria for arms exports

In a report published in October 2022, the Committees on Arms Export
Controls criticised the Government for implementing the criteria without
consultation or warning. The Committees said prior scrutiny of, andconsultation on, the changes “would have helped secure greater confidence
in the new criteria and address concerns regarding their impact prior to
implementation.” 20
The Committees also recommended the Government commission an
independent review in two years to assess the effectiveness of the new
Criteria. 21 The Government rejected that recommendation in its response,saying it did not think a review to be “necessary or proportionate.” 22

1.7

Secondary legislation
Secondary legislation is not required to enact the criteria; the Government
said in the written statement the criteria is guidance given under section 9 of
the Export Control Act 2002. The criteria were applied with immediate effectto all licence decisions from the date of the written statement (8 December2021).
However, the Government will lay secondary legislation to implement twoother changes announced in the Secretary’s written statement. These
concern military end-use controls and will require amendments to the Export
Control Order 2008.23 These are not the subject of this paper. The Export
Control (Amendment) Order 2022 SI 2022/491 was laid on 28 April 2022 andcame into force on 19 May 2022.

20

21

22

23

12

Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2022
Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2022
Committees on Arms Export Controls, Developments in UK Strategic Export Controls: Government
Response [PDF], CP 775, January 2023
HCWS449, 8 December 2021

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UK amends its criteria for arms exports

2

Criterion one: respect for UK’s
international obligations and agreements

Criterion one is concerned with respecting the UK’s international obligations
and agreements. The main changes here are:Removal of the reference to the European Union
Removal of the reference to The Hague code of conduct against ballistic
missile proliferation 24••

Criterion One
2014

2021

Respect for the UK’s international
obligations and commitments, inparticular sanctions adopted by the
UN Security Council or the European
Union, agreements on nonproliferation and other subjects, aswell as other international
obligations.

Respect for the UK’s international
obligations and relevant commitments, inparticular sanctions adopted by the UN
Security Council, agreements on nonproliferation and other subjects, as wellas other international obligations.

The Government will not grant alicence if to do so would beinconsistent with, inter alia:a) the UK’s obligations and its
commitments to enforce United
Nations, European Union andOrganisation for Security and Cooperation in Europe (OSCE) arms
embargoes, as well as national
embargoes observed by the UK andother commitments regarding theapplication of strategic export
controls;

24

13

The Government will not grant a licence if
to do so would be inconsistent with, interalia:a) the UK’s obligations and its
commitments to enforce United Nations
and Organisation for Security and Cooperation in Europe (OSCE) sanctions, aswell as national sanctions observed by
the UK and other relevant commitments
regarding the application of strategic
export controls;

The Hague Code of Conduct (HCOC), which was established in 2002, is not an export control
regime, but is intended to complement the MTCR (missile technology control regime). States
subscribing to the Code commit to a voluntary set of principles and confidence building measures
aimed at strengthening the effort against ballistic missile proliferation, including annual
declarations on ballistic missile policies and notifications prior to missile launches. The UK is a
subscribing state.

Commons Library Research Briefing, 30 November 2023

UK amends its criteria for arms exportsb) the UK’s obligations under theUnited Nations arms trade treaty;b) the UK’s obligations under the United
Nations Arms Trade Treaty;c) the UK’s obligations under the
nuclear non-proliferation treaty, thebiological and toxin weapons
convention and the chemical
weapons convention;c) the UK’s obligations under the Nuclear
Non-Proliferation Treaty, the Biologicaland Toxin Weapons Convention and theChemical Weapons Convention;d) the UK’s obligations under theUnited Nations convention on
certain conventional weapons, theconvention on cluster munitions (theOslo convention), the Cluster
Munitions (Prohibitions) Act 2010,
and the convention on theprohibition of the use, stockpiling,
production and transfer of antipersonnel mines and on theirdestruction (the Ottawa convention)and the Land Mines Act 1998;d) the UK’s obligations under the United
Nations Convention on Certain
Conventional Weapons, the Convention
on Cluster Munitions (the Osloconvention), the Cluster Munitions(Prohibitions) Act 2010, and theConvention on the Prohibition of the Use,
Stockpiling, Production and Transfer ofAnti-Personnel Mines and on their
Destruction (the Ottawa convention) andthe Land Mines Act 1998;e) the UK’s commitments in theframework of the Australia Group,
the missile technology control
regime, the Zangger committee, theNuclear Suppliers Group, theWassenaar arrangement and The
Hague code of conduct against
ballistic missile proliferation;e) the UK’s commitments in theframework of the Australia Group, theMissile Technology Control Regime, theZangger Committee, the Nuclear
Suppliers Group, and the Wassenaar
Arrangement;f) the OSCE principles governing
conventional arms transfers and theEuropean Union common position
2008/944/CFSP defining common
rules governing control of exports ofmilitary technology and equipment.

f) the OSCE principles governing
conventional arms transfers.

Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

14

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UK amends its criteria for arms exports

3

Criterion two: respect for human rights
and fundamental freedoms

Criterion 2 is concerned with respect for human rights and fundamental
freedoms in the country of final destination. It contains three parts,
covering:a) internal repressionb) where violations of human rights have been established by the competentbodies of the UN or the Council of Europec) violation of international humanitarian law.
The layout of criterion 2 has changed. The 2014 version listed all three parts
followed by an explanation, whereas the 2021 version provides an
explanation after each part.
The definition of internal repression includes a change from “major” to“serious” violations of human rights. This may have changed to better bring
the wording in line with that of the Arms Trade Treaty (Article 7) which callson States to assess the potential that items could be used to “commit or
facilitate a serious violation of international human rights law”. 25
The wording in 2a and 2c has been changed, from “risk” to “clear risk” andfrom “risk items might be used for” to “risk items might be used to commit
or facilitate” internal repression or in the commission of a serious violationof international humanitarian law.
The Government gave the Committees on Arms Export Controls thefollowing explanation for the changes:
Criterion 2a and Criterion 2c of the new Criteria include an express reference
to HM Government not granting a licence where there is a clear risk that theitems might be used to “commit or facilitate” internal repression or a serious
violation of international humanitarian law – the previous Criteria only
referred to a clear risk that the items might be used to “commit” internal
repression or a serious violation of international humanitarian law. 26

25

26

15

The Geneva Academy of International Humanitarian Law and Human Rights discuss terminology intheir discussion of “What amounts to a ‘serious violation of international human rights law’?” in an
August 2014 paper (pdf).
Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2023, written evidence UKA0019, 4 July 2023

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UK amends its criteria for arms exports

Criterion 2c and the Judicial Review
Criterion 2c of the Consolidated Criteria was the focus of CAAT’s (Campaign
Against Arms Trade) judicial review of the lawfulness of decisions made by
the Secretary of State responsible for export controls in regard to licences
granted for exports to Saudi Arabia. At the time Saudi Arabia was accused ofcommitting violations of International Humanitarian Law (IHL) during its
military operations in Yemen. In 2019 the Court of Appeal concluded theGovernment’s decision-making process for granting export licences for items
to Saudi Arabia that could be used in the war in Yemen was “irrational” andtherefore “unlawful”. After pausing relevant export licences and reviewing
the process, the Government said in July 2020 that it would resume granting
licences for export to Saudi Arabia. CAAT was granted permission for asecond Judicial Review to proceed to the High Court, to assess whether thegovernment’s decision to resume arms exports is lawful. In a judgement
handed down by the Court on 6 June 2023, the judges rejected CAAT’s
application on all grounds. Further reading: Commons Library paper UK arms
exports to Saudi Arabia: Q&A (CBP8425). All the documents relating to thecourt case are collated on CAAT’s website.

Table 1 Criterion Two
2014

2021

The respect for human rights andfundamental freedoms in the countryof final destination as well as respect
by that country for international
humanitarian law.

Respect for human rights andfundamental freedoms in the country of
final destination as well as respect bythat country for international
humanitarian law.

Having assessed the recipient
country’s attitude towards relevant
principles established by international
human rights instruments, theGovernment will:

Having assessed the recipient country's
attitude towards relevant principles
established by international humanrights instruments, the Government
will:a) not grant a licence if there is a clear
risk that the items might be used forinternal repression;a) Not grant a licence if it determines
there is a clear risk that the items might
be used to commit or facilitate internal
repression;b) exercise special caution andvigilance in granting licences, on acase-by-case basis and taking accountof the nature of the equipment, tocountries where serious violations ofhuman rights have been establishedby the competent bodies of the UN,
the Council of Europe or by theEuropean Union;

16

Internal repression includes, inter alia,
torture and other cruel, inhuman anddegrading treatment or punishment;summary or arbitrary executions;disappearances; arbitrary detentions;and other serious violations of humanrights and fundamental freedoms as set
out in relevant international humanrights instruments, including the
Universal Declaration on Human Rights

Commons Library Research Briefing, 30 November 2023

UK amends its criteria for arms exportsc) not grant a licence if there is a clear
risk that the items might be used in
the commission of a serious violationof international humanitarian law.
For these purposes items which might
be used for internal repression will
include, inter alia, items where thereis evidence of the use of these orsimilar items for internal repression by
the proposed end-user, or where
there is reason to believe that theitems will be diverted from theirstated end use or end user and used
for internal repression.
The nature of the items to betransferred will be considered
carefully, particularly if they areintended for internal security
purposes. Internal repression includes,inter alia, torture and other cruel,inhuman and degrading treatment or
punishment; summary or arbitrary
executions; disappearances; arbitrary
detentions; and other major violationsof human rights and fundamental
freedoms as set out in relevantinternational human rights
instruments, including the universal
declaration on human rights and theinternational covenant on civil andpolitical rights.
In considering the risk that items
might be used for internal repression
or in the commission of a serious
violation of international
humanitarian law, the Government
will also take account of the risk thatthe items might be used to commit
gender-based violence or serious
violence against women or children.

and the International Covenant on Civil
and Political Rights.
For these purposes items which might
be used for internal repression will
include, inter alia, items where there isevidence of the use of these or similar
items for internal repression by the
proposed end-user, or where there isreason to believe that the items will bediverted from their stated end-use or
end-user and used for internal
repression. The nature of the items tobe transferred will be considered
carefully, particularly if they areintended for internal security purposes.
b) Exercise special caution and vigilancein granting licences, on a case-by-casebasis and taking account of the natureof the equipment, to countries whereserious violations of human rights havebeen established by the competentbodies of the UN or the Council ofEurope;Having assessed the recipient country's
attitude towards relevant principles
established by instruments ofinternational humanitarian law, theGovernment will:c) Not grant a licence if it determines
there is a clear risk that the items might
be used to commit or facilitate a serious
violation of international humanitarianlaw.
In considering the risk that items might
be used to commit or facilitate internal
repression, or to commit or facilitate aserious violation of international
humanitarian law, the Government will
also take account of the risk that theitems might be used to commit or
facilitate gender-based violence or
serious acts of violence against womenor children.

Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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UK amends its criteria for arms exports

4

Criterion three: Preservation of internal
peace and security

Criterion three concerns the preservation of internal peace and security inthe country of final destination.
This criterion has been significantly amended and lengthened.
The 2014 version said only that the Government will not grant a licence foritems which would provoke or prolong armed conflicts or aggravate existingtensions or conflicts in the country of final destinations.
The 2021 version instead focuses on the risk that the items would
undermine internal peace and security. Specifically, it says a licence will not
be granted if the Government determines there is a clear risk that the items
would “overall” undermine internal peace and security. The criterion thenprovides a list of factors the Government may take into account when
considering assessing the risk. Given the inclusion of the word “overall”, it is
not clear how the Government might balance the different factors whencoming to their conclusions.
Criterion three also includes an explicit reference to the risk of committing or
facilitating gender-based violence or serious acts of violence against womenor children.
The Government has said the changes to Criterion 3 and Criterion 4 “provide
a more holistic assessment of peace and security”, and a licence will not be
granted if, “having assessed the potential that the items would either
contribute to or undermine internal peace and security […] it determines
there is a clear risk that the items would, overall, undermine internal peaceand security.27

27

Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2023, written evidence UKA0019, 4 July 2023

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UK amends its criteria for arms exports

Criterion Three
2014

2021

The internal situation in the countryof final destination, as a function of
the existence of tensions or armed
conflicts.

Preservation of internal peace andsecurity

The Government will not grant alicence for items which would
provoke or prolong armed conflicts
or aggravate existing tensions or
conflicts in the country of finaldestination.

The Government will not grant a licenceif, having assessed the potential that theitems would either contribute to or
undermine internal peace and security, it
determines there is a clear risk that theitems would, overall, undermine internal
peace and security.
When assessing the potential that theitems would contribute to or undermineinternal peace and security, theGovernment will take into account, interalia and where relevant:a) Whether the grant of the licence would
provoke or prolong armed conflicts;b) Whether the items are likely to be usedother than for the legitimate national
security or defence of the recipient;c) Whether the items would be likely tocause, avert, increase or decrease conflictor instability in the country of finaldestination, taking into account (interalia):(i) the balance of forces between statesor actors concerned;(ii) the potential for the equipment tohave a significant impact on theeffectiveness of existing capabilities orforce projection;(iii) humanitarian purposes or impacts;(iv) the nature of the conflict, including
the conduct of all states or actors
involved, and any involvement by the UK
and allied states;(v) border stability and legitimate national
security interests of the recipient.
d) Whether the items might be used tocommit or facilitate gender-based

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UK amends its criteria for arms exports

violence or serious acts of violenceagainst women or children
Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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UK amends its criteria for arms exports

5

Criterion four: Preservation of peace andsecurity

Criterion four has also been amended considerably.
The focus of the criterion is no longer on the preservation of “regional peaceand security”, and whether an item could be used by the recipient
aggressively against another country. The regional aspect has been removed
and the focus shifted to the risk that items would “overall, undermine peaceand security”. The range of factors has been expanded.
The Government has said the new wording “addresses ambiguities in theprevious formulation” and a licence will not be granted if it determines there
is a “clear risk that the items would, overall […] undermine
regional/international peace and security.” 28This criterion now includes an explicit reference to the risk of committing or
facilitating gender-based violence or serious acts of violence against womenor children.

Table 2 Criterion Four
2014

2021

Preservation of regional peace,security and stability.

Preservation of peace and security

The Government will not grant alicence if there is a clear risk that theintended recipient would use theitems aggressively against anothercountry, or to assert by force aterritorial claim.
When considering these risks, theGovernment will take into account,inter alia:

The Government will not grant a licenceif, having assessed the potential that theitems would either contribute to or
undermine peace and security, it
determines there is a clear risk that theitems would, overall, undermine peaceand security.
When assessing the potential that theitems would contribute to or undermine
peace and security, the Government willtake into account, inter alia and where
relevant:

28

Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2023, written evidence UKA0019, 4 July 2023

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UK amends its criteria for arms exportsa) the existence or likelihood ofa) The existence or likelihood of armed
armed conflict between the recipient conflict in which the recipient would takeand another country;
part;b) a claim against the territory of aneighbouring country which therecipient has in the past tried or
threatened to pursue by means offorce;b) Whether the recipient has in the past
tried or threatened to pursue, by meansof force, a claim against the territory of
another country;c) the likelihood of the items being
used other than for the legitimate
national security and defence of therecipient;c) The likelihood that the items would be
used in the territory of another country
other than for legitimate purposes
including national or collective self
defence;d) the need not to affect adversely
regional stability in any significant
way, taking into account the balanceof forces between the states of theregion concerned, their relative
expenditure on defence, thepotential for the equipment
significantly to enhance theeffectiveness of existing capabilities
or to improve force projection, andthe need not to introduce into theregion new capabilities which would
be likely to lead to increased
tension.

d) Whether the items would be likely tocause, avert, increase or decrease conflictor instability in the region, taking into
account (inter alia):(i) the balance of forces between thestates or actors in the region concerned;(ii) their approach to expenditure on
defence;(iii) the potential for the equipment tohave a significant impact on theeffectiveness of existing capabilities orforce projection;(iv) humanitarian purposes or impacts;(v) the nature of the conflict, including
the conduct of all states or actors
involved, and any involvement by the UK
and allied states;(vi) border stability and legitimate
national security interests of therecipient.
e) Whether the items might be used tocommit or facilitate gender-based
violence or serious acts of violenceagainst women or children

Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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UK amends its criteria for arms exports

6

Criterion five: The national security of the
UK and overseas territories

Criterion five relates to the national security of the UK and the territories
whose external relations are the UK’s responsibility. The main objective
remains the same.
The emphasis in 5a is different, however. The focus is now on the risk of theitems “undermining or damaging the UK’s national security”, rather than the“potential effect… on the UK’s defence and security interests.” The 2021
version has also removed the reference in 5a which said this factor “cannot
affect consideration of the criteria” on respect of human rights and regional
peace, security and stability.

Criterion five
2014

2021

The national security of the UK andterritories whose external relations
are the UK’s responsibility, as well asthat of friendly and allied countries.

The national security of the UK andterritories whose external relations are
the UK’s responsibility, as well as that offriendly and allied countries.

The Government will take into
account:

The Government will take into account:a) the potential effect of the proposedtransfer on the UK’s defence andsecurity interests or on those of other
territories and countries as describedabove, while recognising that thisfactor cannot affect consideration of
the criteria on respect of human rights
and on regional peace, security andstability;a) the risk of the items undermining or
damaging the UK’s national security or
those of other territories and countries
as described above;b) the risk of the items being usedagainst UK forces or against those ofother territories and countries as
described above;b) the risk of the items being usedagainst UK forces or against those ofother territories and countries as
described above;c) the need to protect UK militaryclassified information and capabilities.

c) the need to protect classified
information and capabilities

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UK amends its criteria for arms exports

Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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7

Criterion Six: The behaviour of the buyer
country with regard to the international
community

Criterion six relates to the behaviour of the buyer country with regard to theinternational community, as regards in particular its attitude to terrorism
and transnational organised crime, the nature of its alliances and respect forinternational law.
The 2021 version is more explicit in stating the Government will not grant alicence if there is a clear risk the items could be used to commit an act ofterrorism or transnational organised crime.
This criterion now includes an explicit reference to the risk of committing or
facilitating gender-based violence or serious acts of violence against womenor children.
The Government gave the Committees on Arms Export Controls thefollowing explanation for the changes:
Criterion 6a, which considers the potential that items could be used tocommit or facilitate an offence under international conventions or
protocols to which the United Kingdom is party relating to terrorism ortransnational organised crime. It is now a mandatory criterion (along with
Criteria 1-4), which means that if the risk threshold under this criterion is met,then the licence application must be refused. 29

Criterion Six
2014

2021

The behaviour of the buyer country
with regard to the international
community, as regards in particular to
its attitude to terrorism, the nature of
its alliances and respect forinternational law.

The behaviour of the buyer country withregard to the international community,
as regards in particular its attitude to
terrorism and transnational organised
crime, the nature of its alliances andrespect for international law.

The Government will take into
account, inter alia, the record of thebuyer country with regard to:29

Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2023, written evidence UKA0019, 4 July 2023

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Commons Library Research Briefing, 30 November 2023

UK amends its criteria for arms exportsa) its support for or encouragement ofterrorism and international organised
crime;a) Having assessed the potential thatthe items could be used to commit or
facilitate an act constituting an offence
under international conventions or
protocols to which the UK is a Party
relating to terrorism or transnationalorganised crime, the Government will
not grant a licence if it determines there
is a clear risk that the items could be
used to commit or facilitate such an act.
In making this assessment, theGovernment will also take account of
the risk that the items might be used tocommit or facilitate gender-based
violence or serious acts of violenceagainst women or children.

b) its compliance with its international
commitments, in particular on the
non-use of force, including underinternational humanitarian law
applicable to international and noninternational conflicts;b) The Government will also take into
account, inter alia, the record of thebuyer country with regard to:(i) its compliance with relevantinternational obligations, in particularon the non-use of force, including underinternational humanitarian law
applicable to international and noninternational conflicts;(ii) its commitment to non-proliferationand other areas of arms control anddisarmament, in particular thesignature, ratification andimplementation of relevant arms
control and disarmament instruments
referred to in Criterion One.

c) its commitment to non-proliferationand other areas of arms control anddisarmament, in particular thesignature, ratification andimplementation of relevant arms
control and disarmament instruments
referred to in criterion one.
Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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8

Criterion seven: Risk that items will bediverted or re-exported

While the focus of criterion seven largely remains the same – the risk ofdiversion to another user – the wording has changed slightly. The 2021
version removes the reference to the risk that items may be diverted within
the buyer country or re-exported. Instead, it places greater emphasis on therisk of items being diverted to an “undesirable end-user” or for an“undesirable end-use”.
The range of factors that may be considered is enlarged to explicitly include“the risk of an undesirable end-use either by the stated end-user or anotherparty.” Assessing “the record of the recipient country in respecting re-export
provisions or consent prior to re-export” has been removed from criterion
7c.

Criterion Seven
2014

2021

The existence of a risk that the items
will be diverted within the buyer
country or re-exported under
undesirable conditions.

The existence of a risk that the items will
be diverted to an undesirable end-user orfor an undesirable end-use

In assessing the impact of the
proposed transfer on the recipient
country and the risk that the items
might be diverted to an undesirable
end-user or for an undesirable enduse, the Government will consider:

In assessing the risk that the items might
be diverted to an undesirable end-user orfor an undesirable end-use, theGovernment will take into account:a) the legitimate defence anddomestic security interests of therecipient country, including any
involvement in United Nations orother peace-keeping activity;a) the legitimate defence and domestic
security interests of the recipient country,
including any involvement in United
Nations or other humanitarian or peacekeeping activity;b) the technical capability of therecipient country to use the items;b) the technical capability of the recipient
country to use the items;c) the capability of the recipient
country to exert effective export
controls;c) the capability of the recipient country
to exert effective export controls;

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UK amends its criteria for arms exportsd) the risk of re-export toundesirable destinations and, as
appropriate, the record of therecipient country in respecting reexport provisions or consent prior to
re-export;d) the risk of re-export to undesirable
destinations;e) the risk of diversion to terrorist
organisations or to individual
terrorists;e) the risk of diversion to terrorist
organisations, individual terrorists or totransnational organised crime;f) the risk of reverse engineering orunintended technology transferf) the risk of reverse engineering orunintended technology transfer;g) the risk of an undesirable end-use
either by the stated end-user or anotherparty.

Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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UK amends its criteria for arms exports

9

Criterion eight: The compatibility of thetransfer with the technical and economic
capacity of the recipient country

Criterion eight focuses on the compatibility of the transfer with the technicaland economic capacity of the recipient country. The only change between
the 2014 and 2021 versions is in the third paragraph, where “amongst otherfactors” is added before the list of factors that will be considered.

Criterion Eight
2014

2021

The compatibility of the transfer withthe technical and economic capacity of
the recipient country, taking into
account the desirability that statesshould achieve their legitimate needs of
security and defence with the least
diversion for armaments of human andeconomic resources.

The compatibility of the transfer withthe technical and economic capacity of
the recipient country, taking into
account the desirability that statesshould achieve their legitimate needsof security and defence with the least
diversion for armaments of humanand economic resources.

The Government will take into account,in the light of information from relevant
sources such as United Nations
Development Programme, World Bank,IMF and Organisation for Economic Cooperation and Development reports,
whether the proposed transfer would
seriously undermine the economy orseriously hamper the sustainable
development of the recipient country.

The Government will take into
account, in the light of informationfrom relevant sources such as United
Nations Development Programme,
World Bank, IMF and Organisation for
Economic Cooperation andDevelopment reports, whether the
proposed transfer would seriously
undermine the economy or seriously
hamper the sustainable developmentof the recipient country.

The Government will consider in thiscontext the recipient country’s relative
levels of military and social expenditure,taking into account also any EU or
bilateral aid, and its public finances,balance of payments, external debt,
economic and social development andany IMF or World Bank-sponsoredeconomic reform programme

29

The Government will consider in thiscontext, amongst other factors, therecipient country’s relative levels of
military and social expenditure, taking
into account also any bilateral or
multilateral aid, and its publicfinances, balance of payments,
external debt, economic and social
development and any IMF or World
Bank-sponsored economic reform
programme.

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UK amends its criteria for arms exports

10

Other factors: Denial of licence if it may
have a significant negative impact on the
UK’s international relations

Whilst not a numbered criterion, Other Factors allows the Government “inexceptional circumstances” to not grant a licence for reasons other thanthose set out in the criteria “where the items may have a significant impact
on the UK’s international relations.”
This is different to the 2014 version, which states that the UK can take into
account the effect of proposed exports on their economic, social,commercial and industrial interests, but these factors “will not” affect theapplication of the criteria. Liz Truss, then Secretary of State for International
Trade, repeated this view in a letter to the chair of the Committees on Arms
Export Controls in January 2021, when she said “the ‘other factors’…. Will
not affect the application of the criteria but may be taken into account of
where appropriate.” 30
In written evidence to the Committees on Arms Exports Controls, theGovernment said change “provides a degree of ‘future-proofing’, for
unforeseeable challenges. The Government said it also expects to use ‘otherfactors’ very rarely as a reason for refusing to grant a licence:
A decision to refuse a licence with reference to ‘Other Factors’ will
apply only in exceptional circumstances, where the items may have asignificant negative impact on the United Kingdom’s international
relations. This is a high threshold, and it is anticipated that ‘Other
Factors’ would be used only very rarely. 31

A reference to the EU common position has been removed from thiscriterion.

30

31

30

Letter from Secretary of State for International Trade to Chair Committees on Arms Export
Controls, 19 January 2021 (PDF)
Committees on Arms Export Controls, Developments in UK Strategic Export Controls [PDF], HC 282
2022-23, 28 October 2023, written evidence UKA0019, 4 July 2023

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UK amends its criteria for arms exports

Other factors
2014

2021

Article 10 of the EU common position
specifies that member states may,where appropriate, also take into
account the effect of proposed exportson their economic, social, commercial
and industrial interests, but that thesefactors will not affect the application of
the criteria in the common position.

In exceptional circumstances thegovernment may decide not to grant alicence for reasons other than thoseset out in Criteria 1 to 8 where theitems may have a significant negative
impact on the UK’s international
relations.

The Government will thus continue
when considering licence applications
to give full weight to the UK’s national
interest, including:a. the potential effect on the UK’s
economic, financial and commercial
interests, including our long-term
interests in having stable, democratic
trading partners;b) the potential effect on the UK’s
international relations;c) the potential effect on any
collaborative defence production or
procurement project with allies or EU
partners;d) the protection of the UK’s essential
strategic industrial base.
Source: HC Deb 25 March 2014 c14WS; HCWS449, 8 December 2021

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