The legal and regulatory framework for UK arms exports

The legal and regulatory framework for arms exports has developed on the basis of the recommendation made in Sir Richard Scott’s 1996 report on the arms-to-Iraq inquiry that a thorough review of the existing framework should be carried out.

The main elements of today’s framework are the Consolidated EU and National Arms Export Licensing Criteria; the Export Control Act 2002; and a number of EU measures.

There were two important changes to the UK’s regulatory framework for arms exports under the 2015-17 Conservative Government.

Firstly, the Government announced the creation of an ‘Export Controls Joint Unit’, which will provide a “coordinated cross-government operation of export controls while maintaining a prompt and high quality licensing service for UK exporters.” However, DFID is not represented on the new unit.

Secondly, since July 2016 responsibility for export controls moved from the defunct Department for Business, Innovation and Skills to the new Department for International Trade (DIT).

The main controversy over UK arms export control policy during the last Parliament arose from the use of UK-manufactured arms in Yemen by Saudi Arabia. Concerns that UK arms may have been used to commit violations of International Humanitarian Law in Yemen led to calls from a range of quarters for the suspension of arms exports to Saudi Arabia. The Government rejected these calls. A judicial review of the UK Government’s decision was heard in February 2017.

Parliament’s Committees on Arms Export Controls, which scrutinises UK arms export policy, held an inquiry into this controversy. However, there was a split within the Committees on the key issue of whether or not to endorse the suspension of UK arms exports to Saudi Arabia that could be used in Yemen. This led ultimately to the publication of two separate reports. However, both reports included recommendations that the UK’s licensing system should be made more robust and transparent. The Committees effectively ceased to function after it split over the issue.

Since it was agreed in 2008, European Council Common Position 2008/944/CFSP has been widely cited as the basis on which the Consolidated EU and National Arms Export Licensing Criteria (henceforth, Consolidated Criteria) became legally binding in the UK.

The 2008 Common Position contains eight criteria against which export licensing applications can be approved or refused by EU Member States. The wording used in the Common Position is very similar to that used in the Consolidated Criteria. Successive UK governments have considered them to be fully consistent with each other (although successive Committees on Arms Export Controls up to 2015 did not).

The European Union (Withdrawal) Bill has plenty to say about the future of EU Regulations, Directives and Decisions, but how it treats the many Common Positions – or as they are called today, CFSP Decisions – to which the UK has committed itself during its EU membership requires some teasing out.

The Bill appears to indicate that, for its purposes, CFSP Decisions are not considered EU law by the UK Government, but are instead “international obligations” as defined in Clause 8.

Clause 8 gives Ministers

the power to make secondary legislation to enable continued compliance with the UK’s international obligations by preventing or remedying any breaches that might otherwise arise as a result of withdrawal.

Given this, the question then arises of whether secondary legislation might be required to enable the UK to meet its “international obligations” in this sphere of policy. It is likely that – although it has not said so explicitly – the UK Government does not think that it is necessary.

The UK Government appears to be of the view that the Consolidated Criteria, which are “guidance” provided for by a piece of primary legislation, The Export Control Act 2002, “enable continued compliance with the UK’s “international obligations”.

However, some might argue that, under the 2002 Act, it is the duty to provide guidance, rather than the content of the guidance itself, that is binding in UK law – and that this represents insufficient compliance with the UK’s “international obligations.”

Some might also be concerned that, as things stand, a post-Brexit UK government could change the content of the guidance – potentially weakening or scrapping the Consolidated Criteria – through the exercise of administrative powers under the 2002 Act.

In fact, this has been possible while the 2008 Common Position has been in force. Indeed, when the Coalition Government (2010-15) issued a new version of the Consolidated Criteria in March 2014, it was not subject to prior debate or a vote in parliament.

Given all this, some might ask whether it would be desirable, if the 2008 Common Position is not to be part of “retained EU law”, for the UK Government to confirm through new legislation the binding status in UK law of the current version of the Consolidated Criteria.

In December 2016, a senior FCO official indicated that she expected the Consolidated Criteria to “stand” after Brexit, but did not set out her reasons for saying so. The UK Government may eventually provide a fuller explanation of its position.

The Campaign Against Arms Trade (CAAT) asked the High Court to order the government to reconsider its decision in the last parliament not to suspend arms exports to Saudi Arabia following concerns that UK arms may have been used to commit violations of IHL in the course of Saudi military operations in Yemen. In July 2017 the High Court found in favour of the government. CAAT is seeking permission to appeal.

Parliament has to decide how best to scrutinise UK arms export policy in future. It can resurrect the Committees on Arms Export Controls or give the role to a different body.

See also Commons Library Briefing Paper No. 5802, “The Arms Trade Treaty” (last updated November 2014).

This title of this briefing paper used to be ‘UK Arms Export Control Policy’.