Export Licences: High Court Judgment — House of Lords, 2019-06-20
Topic: Defense
James Stopford (Conservative, Centre-right): My Lords, with the leave of the House, I shall now repeat a Statement given earlier today by my right honourable friend the Secretary of State. The Statement is as follows: "Today, the Court of Appeal handed down its judgment following Campaign Against Arms Trade’s appeal against the Divisional Court’s decision, in July 2017, to dismiss CAAT’s claim for 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 from 9 to 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 their 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 these grounds 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 the judgment Today’s judgment is not about whether the Government 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: 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’ These 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 risk of diversion. They provide a thorough and rigorous risk-assessment framework for reaching 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, this means advice from the Foreign Secretary. Before the establishment of DIT in July 2016, the decision-maker was the then Secretary of State for Business. From July 2016, the responsibility passed to me 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 IHL breaches known to us; an understanding of Saudi military procedures; continuing engagement with the Saudis at the highest level; post-incident dialogue, including 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 NGOs and the UN, 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 we lost in the Court of Appeal judgment concerned whether we were under an obligation to make some overall assessment of whether there had been historic violations of IHL, including whether a pattern of violations could be discerned. Our approach is in line with the EU common position. It has 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 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 historic record of Saudi Arabia in respect of IHL. Our whole assessment has been infused with IHL considerations. Everything was 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, in the context of 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 the decision-maker could rely and 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 of whether there was an historic pattern of breaches of IHL was a question which was 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 we 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 our 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 this judgment and will seek permission to appeal. Alongside this, we are carefully considering the implications of the judgement for decision-making. While we do this, we will not grant any new licences for exports to Saudi Arabia and its coalition partners which might be used in the conflict in Yemen. As the Court of Appeal makes clear, different people may or may not approve 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 whether the decision-making process was rational. The judgment emphasises that there would not be only one answer on future risk if historic violations were found to have taken place. In other words, changing the process, as set out by the court, does not necessarily mean that 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 these criteria in a specific context. I commend this Statement to the House" My Lords, that concludes the Statement.