Statement on breaches of the undertaking given to the Court of Appeal not to grant new licences for export to Saudi Arabia of arms and military equipment for possible use in the conflict in Yemen
I want to update Parliament on matters relating to the two breaches of the Undertaking given to the Court of Appeal on 20 June by the then Secretary of State that we would not grant new licences for export to Saudi Arabia of arms and military equipment for possible use in the conflict Yemen, and the further breach of the commitment given to Parliament, also on 20 June, that we would not grant new licences for exports to Saudi Arabia or its Coalition partners which might be used in the conflict in Yemen.
As the Government informed the Court on 16th September and followed up with an affidavit today, my Department identified errors that had taken place in the export licensing procedure in relation to the Saudi coalition’s activities in the conflict in Yemen.
As I stated publicly on 16th September, I unreservedly apologise for the export licences that my Department issued in error. I have also given my unreserved apologies to the Court.
A procedure to ensure that export licences were not granted for goods for Saudi Arabia and its Coalition partners for possible use in the conflict in Yemen was put in place on 20th June 2019. This followed the Court Order and the then Secretary of State’s statement to Parliament.
The Export Control Joint Unit subsequently issued export licences to Saudi Arabia and its Coalition partners and, in line with the agreed procedure, these were signed off at official rather than Ministerial level.
It subsequently came to light that two licences were in breach of the Court undertaking, and one licence was granted contrary to the statement in Parliament as these licences were for goods that could possibly be used in the conflict in Yemen. The first licence identified as raising this issue (Licence No. GBSIE2019/06449) was for the export of a single Wirewound Air Cooler, valued at £200, for incorporation by a French company, Arquus Defense SAS, in a Renault Sherpa Light Scout. Officials in ECJU have informed me that the licence application stated that the vehicle would be used by the Royal Saudi Land Forces (“RSLF”) in Saudi Arabia and they have provided me with the following information about this licence. This is in line with the formal role of the FCO and the MOD in providing advice on the Consolidated EU and National Arms Export Licensing Criteria (the “Consolidated Criteria”) to the DIT.
Thereafter the sequence of events was as follows:
On 3 June 2019, the FCO recommended approval on the basis that the RSLF were not operating in Yemen.
On 4 June 2019, the MOD provided its advice recommending approval on the basis that the goods would not be used against the security or capability of the United Kingdom and that the equipment would not be diverted to an undesirable end-user.
On 4 June 2019, the case was recirculated to the FCO who again, on 6 June 2019, provided its formal advice, recommending issue.
On 18 June 2019, the FCO received information from the British Embassy in Riyadh that some RSLF troops were deployed in Yemen. Consequently, there was a risk that equipment destined for the RSLF might be used in the conflict in Yemen. The FCO was unaware that the licence had not already been issued and did not pass this information on to the DIT. We are investigating exactly how and when information was shared between FCO and DIT. In any event, it is plain that the DIT was not aware of the deployment of RSLF when the licence was formally countersigned and issued on 26 June 2019.
The item was shipped and this licence is therefore now spent.
Licence No. GBSIE2019/07556
This licence was for the export of 260 items of various radio spares for the RSLF Signal Corps, valued at £435,450.
Thereafter the sequence of events was:
The application was circulated to the FCO and MOD on 31 May 2019.
The FCO provided its advice recommending approval on 6 June 2019.
The MOD advised approval on 26 July 2019.
The licence was formally countersigned and issued on 29 July 2019.
Given the fact that RSLF troops were being deployed in Yemen at the time the licence was issued, this licence should not have been granted.
DIT officials have checked with the exporter: 180 items have been shipped, with a value of £261,450, leaving 80 items licensed but unshipped with a value of £174,000. DIT officials revoked this licence on 16 September 2019.
Licence No. GBSIE2019/08983
This is a licence for the temporary export for demonstration purposes of dual-use counter-improvised explosive device equipment. These goods remain under the exporter’s control at all times and so there is consequently no possibility that the equipment could be used in the conflict in Yemen. Consequently the licence is not within the scope of the Undertaking.
Although not a breach of the Undertaking, one further licence was identified (Licence No. GBSIE2019/06671) that was granted for the export of equipment for which the end user was the UAE Navy, contrary to the statement to Parliament. Export Control Joint Unit officials cannot be sure that the relevant class of ship will be used solely for maritime security operations rather than in the conflict in Yemen. DIT officials revoked this licence on 16 September 2019 on the grounds that it was granted contrary to the Parliamentary Statement. Other licences have been issued to the UAE Navy that do not fall within the scope of the Parliamentary Statement.
Without seeking to prejudge the independent investigation, it appears that information pertaining to the conflict had not been fully shared across government.
As soon as the issue was brought to my attention on the 12th September, I took immediate action:
Taking immediate steps to inform the Court and Parliament;
Putting in place immediate, interim procedures to make sure the errors could not happen again;
Instigating a complete and full internal review of all licences granted for Saudi Arabia and its Coalition partners since 20 June;
The Permanent Secretary commissioned, on my behalf, a full independent investigation.
The additional compliance processes comprise the following steps (in addition to the existing licensing processes):
A checklist has been drawn up for licence applications for arms and military equipment to Saudi Arabia and its Coalition partners. This will be used by FCO and DIT officials when an export licence application is received for Saudi Arabia and/or any of the Coalition partners. It is intended to ensure that staff remain vigilant in considering the available information and in assessing whether the application potentially falls within the scope of the Undertaking and the Parliamentary Statement. A copy of this checklist is attached;
Licence applications for arms and military equipment to Saudi Arabia and its Coalition partners will be referred to a new weekly meeting of senior officials from DIT, FCO and MOD. Some applications will have been refused by this point, for example where they fail to meet one or more of the Consolidated Criteria. This meeting will reach a recommendation for Ministers as to whether applications are within the scope of the Undertaking and the Parliamentary Statement, applying a further checklist of questions which are designed to ensure that: (i) current and full information is available to enable an assessment of whether the items in question are for possible use in the conflict in Yemen; and (ii) if there has been any change in circumstances in the conflict in Yemen, this is properly included in the assessment. A copy of this secondary checklist is attached;
All recommendations to grant licences for the export of items to Saudi Arabia and its Coalition partners will be referred to Ministers.
These additional compliance measures will be reviewed by the independent investigation, as well as kept under review by DIT to ensure that they are robust and appropriate.
The full review of licences for Saudi Arabia and its coalition partners is currently being undertaken. This internal review is still ongoing.
As a result of this internal review, we have identified one further licence that has been granted in breach of the Undertaking given to the Court of Appeal. Licence No GBOIE2019/00197 allowed the exporter, to return and repair electronic countermeasure improvised explosive device equipment licensed previously under three licences issued in 2014 (Licence Nos. GBSIE2014/010932; GBSIE2014/013148 and GBSIE2014/000512) to Saudi Eraad Defence Systems in Saudi Arabia (an agent of the RSLF). There are no new items being shipped under this licence. The equipment is deployed as an electronic countermeasure to prevent the triggering of a remotely controlled improvised explosive device.
The process of approval for this licence was as follows:
The application was received by DIT on 14 February 2019 and was circulated to the FCO, the National Cyber Security Centre at GCHQ (“GCHQ-NCSC”) and the MOD on 12 March 2019. It was circulated to GCHQ-NCSC for an assessment of whether the use of cryptography gave rise to any concerns.
On 19 March 2019, GCHQ-NCSC advised that the application raised no concerns in relation to the use of cryptography.
The FCO and MOD similarly recommended issue on 2 April and 16 July 2019 respectively.
DIT countersigned the licence on 12 August and issued the licence on 13 August 2019. Given the fact that RSLF troops were being deployed in Yemen at the time the licence was issued, this licence should not have been granted.
DIT officials contacted the exporter who confirmed that this licence has not been used. DIT officials revoked this licence on 20 September 2019.
The licence has not been used and has now been revoked.
My officials are also carrying out an urgent review of the composition of the Coalition. This has identified a further licence which is in breach of the Parliamentary statement. Licence No. GBOIE2016/00197b permits the export of fuel gauges for F-16 military aircraft to a number of countries which operate the F-16. The licence was originally granted on 5 August 2016 with an expiry date of 5 August 2019. On 28 August 2019 we extended the expiry date to 5 February 2020.
We have re-assessed this licence in light of the latest information and subsequently revoked it in so far as it applies to Jordan. At the time the licence was extended, the relevant officials in ECJU believed Jordan was not involved in military operations in the conflict in Yemen.
We have been able to confirm that none of the other recipient countries covered by this licence are Coalition partners.
My officials are continuing to review all information relating to licences granted to Saudi Arabia and its Coalition partners since 20 June 2019 and we will be open and transparent with the Court and Parliament as to any new issues that emerge.
In addition, the Permanent Secretary has commissioned, on my behalf, a full independent investigation. This will establish the precise circumstances in which these licences were granted, establish whether any other licences have been granted in breach of the Undertaking to the Court or contrary to the Parliamentary statement, and confirm that procedures are in place so that no further breaches of the Undertaking can occur. This investigation will be led by an independent senior official – the Director General of Policy Group in the Department for Work and Pensions.
It is possible that more cases will come to light. As I have done so far, I will keep the Court and Parliament informed as to any new information that emerges.
CHECKLIST FOR CASE ASSESSMENT INVOLVING ARMS OR MILITARY EQUIPMENT
This is to be used by DIT and FCO licensing officers when an export licence application is received for Saudi Arabia and/or any of the Coalition Partners (CP). This checklist is in addition to the normal assessment against the Consolidated EU and National Arms Export Licensing Criteria (“the Consolidated Criteria”). If the assessment against the Consolidated Criteria identifies an application that should be refused, then it will follow the usual refusal procedure.
DIT licensing officers must check to ensure that all the required information is available to enable a decision to be made as to whether Saudi Arabia and/or a CP destination is involved in the export. This will include asking the exporter for further information where they suspect that the final destination could be Saudi Arabia or a CP. This will then be recorded as a case note on SPIRE.
FCO advisers must check to ensure that they are aware of the latest position on the conflict in Yemen, including the countries involved and the military forces involved. The FCO adviser, once in possession of the latest information, will carry out an analysis against this checklist. The analysis must be recorded on SPIRE
- Which countries are currently in the Coalition involved in the conflict in Yemen?
- Which military or government branches from Saudi Arabia or each CP are currently operating in the conflict in Yemen, so far as HMG is reasonably aware?
IF A DIRECT EXPORT (TO ANY OF SAUDI ARABIA OR ITS COALITION PARTNERS):
- Is the consignee or end user a private/commercial enterprise with an industrial/civil/personal or private end use?
IF YES – Please record analysis on SPIRE, including that it is not in scope of the undertaking to the Court or Parliamentary Commitment
- Is the end user the civil police forces or emergency services of Saudi Arabia and/or a CP?
IF YES - Please record analysis on SPIRE, including that it is not in scope of the undertaking to the Court or Parliamentary Commitment
- Is the consignee or end user the armed forces of Saudi Arabia and/or a CP?
IF YES – Please record analysis on SPIRE, including that it is potentially in scope of the undertaking to the Court or Parliamentary Commitment
- Is that branch of the armed forces involved in the conflict in Yemen?
IF YES - Please record analysis on SPIRE, including that it is potentially in scope of the undertaking to the Court or Parliamentary Commitment.
IF AN INDIRECT EXPORT (TO ANY DESTINATION):
- Are the goods to be incorporated into equipment to be subsequently sold or delivered to the armed forces of a country whose forces are involved in the conflict in Yemen?
IF YES – Please record analysis on SPIRE, including that it is potentially in scope of the undertaking to the Court or Parliamentary Commitment
This licence application must be referred to the weekly DIT-FCO-MOD senior officials meeting
CHECKLIST FOR DIT-FCO-MOD SENIOR OFFICIALS MEETING
Establishing the operating context:
- Have all the licence applications for consideration in this meeting had full consideration against the Consolidated EU and National Arms Export Licensing Criteria (“the Consolidated Criteria”)?
- Which countries are currently part of the Coalition involved in the conflict in Yemen?
- Has any new country joined the Coalition?
- Has any country left the Coalition?
- Has the armed forces/branch of Saudi Arabia and Coalition Partners involved in the conflict in Yemen changed so far as HMG is reasonably aware?
- Has FCO confirmed that its advice, against the relevant criteria, is still up to date? (e.g. there is no information from Posts (or other reasonably available sources) that post-dates the advice entered onto SPIRE that may call into question the recommendation)
- Has MOD confirmed that its advice, against the relevant criteria, is still up to date?
Assessing against the undertaking to the Court and the commitment to Parliament:
- Has each application been assessed against the terms of the undertaking to the Court and the commitment to Parliament?
- Is it clear that none of the applications involve arms or military equipment for possible use in the conflict in Yemen?
The discussion in each meeting should be recorded on a template which is uploaded onto each relevant case on SPIRE. This will form part of the advice provided to Ministers after the meeting.
This statement has also been made in the House of Lords: