5Application of the Consolidated Criteria
Consolidated Criteria
75.In 2000 the then government produced a new list of criteria for export-control, and trade-control, licensing. These were referred to as the Consolidated Criteria, since they were intended to combine both the UK national criteria and those in the EU Code of Conduct.81 The Export Control Act 2002 gave the responsible Secretary of State a duty to issue guidance on the exercise of licensing powers; and the Consolidated Criteria have been denoted by successive governments as constituting such guidance under the Act.
76.The EU Common Position on Arms Exports, which superseded the Code of Conduct in 2008, laid down a legally binding framework of eight criteria to serve as a minimum standard against which EU Member States can judge export licence applications in respect of military items. (The same criteria apply to the Common Position on Arms Brokering.) The 2009 Dual-Use Regulation does not prescribe a detailed set of assessment criteria, although it does require Member States to take into account “all relevant considerations”, including the Common Position on Arms Exports.82
77.In March 2014 revised Consolidated Criteria were issued which the then government regarded as incorporating the EU Common Position on Arms Exports—although the previous Committees disagreed.83 The revised Consolidated Criteria were set out in a statement to the House in 2014 by the then Secretary of State for Business, Innovation and Skills.84
78.The eight revised Consolidated Criteria are shown in Table 4.
Table 4 Consolidated Criteria
|
Type |
Criterion no. |
Summary |
Lead advisory department(s) |
|
Mandatory |
1 |
Respect for the UK’s international obligations and commitments, in particular sanctions adopted by the UN Security Council or the European Union, agreements on non-proliferation and other subjects, as well as other international obligations. |
FCO |
|
2 |
The respect for human rights and fundamental freedoms in the country of final destination as well as respect by that country for international humanitarian law. |
FCO |
|
|
3 |
The internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts. |
FCO |
|
|
4 |
Preservation of regional peace, security and stability. |
FCO |
|
|
Non-mandatory |
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. |
MoD |
|
6 |
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 for international law. |
FCO |
|
|
7 |
The existence of a risk that the items will be diverted within the buyer country or re-exported under undesirable conditions. |
FCO / MoD |
|
|
8 |
The compatibility of the transfer with the technical and economic capacity of the recipient country, taking into account the desirability that states should achieve their legitimate needs of security and defence with the least diversion for armaments of human and economic resources. |
DfID |
Source: HC Deb, 25 March 2014, cols 9–14WS
79.Applications are assessed against the Criteria and can be refused if they fail in respect of one or more of them. Certain Criteria are mandatory, meaning that any licence which would breach any of these must be refused.85 In announcing the revised Consolidated Criteria in 2014, the then government stated that they would:
not be applied mechanistically but on a case-by-case basis taking into account all relevant information available at the time the licence application is assessed. While the Government recognise that there are situations where transfers must not take place, as set out in the […] criteria, we will not refuse a licence on the grounds of a purely theoretical risk of a breach of one or more of those criteria.86
The FCO, MoD and DfID advise DIT on “relevant foreign, defence and international development aspects”87 of particular criteria, with one or two of these advisory departments taking the lead in respect of each Criterion. DfID leads only on Criterion 8 (regarding sustainable development).
80.Where the departments fail to concur on how to treat a particular licence application, mechanisms exist for resolving such differences. Firstly, there are weekly interdepartmental “denials meetings”, to discuss cases where any department has recommended refusal. Where such discussion fails to resolve the matter, “the dispute resolution mechanism or complex cases mechanism” can be invoked, with the Cabinet Office mediating between the departments. The final resort is for the matter to be put to Ministers.88 There are also other circumstances under which individual licence applications are referred up for a decision at the ministerial level.
Involvement of the Department for International Development
81.In 2014 the previous Committees suggested consideration be given to the formal involvement of DfID in the assessment of applications against other Criteria than Criterion 8, such as Criteria 3 (regarding the internal situation in the destination country) and 4 (regarding the preservation of regional peace, security and stability). The then government responded that the necessary expertise already sat within the other departments, and that these worked closely with DfID officials.89 When the ECJU was formed in 2016, DfID was not represented in the Unit.
82.Martin Butcher, Policy Adviser, Arms Campaign at Oxfam, told us that DfID should be one of the departments participating in the ECJU. He advocated this on the basis that DfID was a department with:90
staff across the world, particularly in countries that are or have been conflict-affected, where problems relating to arms exports are particularly strong or can be particularly strong. The information that those staff can provide would be extremely useful in this process. We also think that the work that DFID does in producing its report on conflict-affected countries would usefully inform arms export licensing.
He also referred to what he saw as the “very valuable” role that DfID had played, in concert with the FCO and other departments, in the negotiation of the ATT.91 (The Treaty is dealt with in Chapter 7.)
83.Mr Butcher’s view was echoed by Mr Feeley-Sprague, of Amnesty International,92 who referred to the work done by the previous Committees and others “to ensure that issues of sustainable development and the role of DFID were central to export licensing”.93 He also referred to DfID’s role in strengthening government policy on small arms and light weapons: “They have had the experience to say that small arms and light weapons in conflict-affected countries are an incredible driver of poverty and all the related issues that come into it.”94 DfID participation in the ECJU was also advocated to us by Dr Anna Stavrianakis, Senior Lecturer in the Department of International Relations at the University of Sussex.95
84.When we asked Sir Alan Duncan about this issue, he said that DfID staff were “fully involved” and played “a vital role” in relation to assessing licence applications against Criterion 8, although this had concerned only some 0.6% of licences issued in 2017.96 He stated that “DFID are very much a central part of the process, as is the Department for Business[, Energy and Industrial Strategy], although they are not, in the same way as DFID, a formal part of the permanent structure of the joint unit.”97
Objectivity of the licensing process
85.We heard that there are particular concerns about the extent to which the licensing regime is truly objective and rules-based. This has come up in the context of the judicial review proceedings brought by the Campaign Against the Arms Trade (CAAT) over the licensing of arms exports to Saudi Arabia for use in the civil war in Yemen. CAAT argued that the licensing of arms exports in respect of the civil war in Yemen was not consistent with Criterion 2c of the Consolidated Criteria, which states that a licence will not be granted where there is “a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”.98
86.The High Court ruled in favour of the Government in July 2017, finding that the Secretary of State was “rationally entitled” to conclude “that there was no ‘clear risk’ that there might be ‘serious violations’ of International Humanitarian Law (in its various manifestations) such that UK arms sales to Saudi Arabia should be suspended or cancelled under Criterion 2c”.99 In the Court’s judgement, it concluded that the evidence showed “beyond question that the apparatus of the State, ministers and officials, was directed towards making the correct evaluations for the purposes of the Consolidated Criteria.”100 The court stated that it had undertaken “a thorough review of all the Open and Closed materials” in order to get: an understanding of the Secretary of State’s approach; a clear idea of how he had dealt with evidence and other materials; a comprehensive picture of what that evidence and those materials were; an objective view of all the strands of open and closed evidence and materials; and an overall assessment of the Secretary of State’s judgement call in light of the preceding.101 Dr Stavrianakis took a different view, arguing that “the judiciary were very quick to accept at face value the claims that the Government made”.102
87.In May 2018, CAAT was granted permission to appeal and a hearing is now pending. Control Arms UK (a coalition of UK-based non-governmental organisations, including Amnesty International UK, Oxfam and Saferworld) argued to us that, if the Government is successful in the appeal, the case “raises concerns about the UK’s current system of arms transfer control. It suggests that, as long as certain processes are followed, the Consolidated Criteria do not amount to any real legal constraint on the UK Government unless the Government chooses to be constrained.”103 They argued that in this case the Criteria had apparently “not been the decisive factor in the licensing decisions” and that the licensing process “has provided cover for decision-making, rather than acting as a meaningful check and control on it”.104
88.Dr Stavrianakis, of Sussex University, told us that “there is a lot of process. There are a lot of civil servants. There is a lot of oversight […] but we have a series of perverse outcomes.” She thought that “political direction”, occurring at “both at the level of policy and at the level of individual licensing decisions”, was the reason for this. Such political direction:105
pushes implementation of policy away from prevention—away from prevention of [international humanitarian law] violations, away from the prevention of human rights abuses, all while remaining technically within the bounds of what is legally and politically permissible.
89.Political direction occurred in two forms, Dr Stavrianakis said. Firstly, it occurred at the policy level. She referred to a 2016 e-mail from the Head of ECO (Mr Bell) which had been published during the judicial review proceedings. This, it was argued, raised the question of whether political direction had been “issued or implied” to ensure that the threshold of “clear risk” in respect of a serious violation of international humanitarian law (under Criterion 2c) is not seen to have been breached, leaving the way clear to take account of “wider factors—such as diplomatic and economic relations”.106
90.The second form of ministerial involvement occurred where individual cases were passed directly to Ministers for a decision. Dr Stavrianakis told us: “at the level of individual licences we know that the Foreign Office are referring individual licence decisions to the Foreign Secretary. These are decisions being made at the highest level.”107 She thought that we “could usefully investigate the grounds on which export licences are referred to ministers”.108 ADS Group, on the other hand, thought that the “in-built mechanism to escalate [a case] to ministerial level” in the event that cross-departmental consensus could not be reached on it “ensure[d] complete accountability of decision-making”.109
91.When we took evidence from Ministers, they insisted that the licensing process is rigorously objective. Mr Stuart told us: “I would say that it was not subjective and that […] it does provide a really solid framework. […] [T]here is a whole series of Government Departments and others who are consulted. We are not only consulting across Government.” The information-gathering that went on:110
incorporates all of those appropriately in post around the world to ensure that that information is captured. All of that is captured against the criteria, one after another, to ensure that we have a coherent, robust and objective system by which any particular application can be judged.
92.Sir Alan likewise insisted that “What is happening here is a process of measuring decisions against the criteria. That is not a matter of decision; it is a matter of measurement.”111 He elaborated:112
There is a process. For instance, there is an EU user’s guide to the common position on how to interpret criterion 2. So there is a methodology here; it is not just a subjective process at all. There is a clear methodology within which and against which the judgments can be properly made.
93.We raised with Mr Bell, Head of the ECJU, the following sentence in the e-mail of his which was published during the judicial review (referred to above):
To be honest–and I was very direct and honest with the [Secretary of State]–my gut tells me we should suspend [licences for arms sales to Saudi Arabia in relation to the civil war in Yemen]. This would be prudent and cautious given the acknowledged gaps in knowledge about Saudi operations.113
Asked how many times Ministers had overturned his “gut feeling”, Mr Bell responded: “I do not think my gut is at all relevant to licensing decisions.”114
94.Regarding the circumstances in which Ministers become involved in deciding on an individual case, Mr Bell said that “The different Departments involved have their own criteria and thresholds for referral of cases”. He confirmed that one situation where a case might be referred to a DIT Minister was where departments took differing views and these could not be resolved in any other way. He added that “Other scenarios might include where there is a deterioration in the security conditions in a given destination, so there is much closer and deeper scrutiny of the issues around licensing decisions.” In all, there were “about six different thresholds that we operate” as regards escalating cases up to Ministers.115
Proposed presumptions of denial
Non-signatories of the Arms Trade Treaty
95.Control Arms UK propose that the UK should operate a “presumption of denial” in respect of licences involving exports to states that have not signed the ATT (the Treaty itself is discussed in Chapter 7):116
The UK Government’s promotion of the ATT should take precedence over its promotion of arms exports, especially in those circumstances where the commitment of the potential buyer-government is unclear or absent. In the UK’s ATT Annual Report covering exports and imports of weapons in 2016, the UK reported authorisations to 73 countries, including 17 that were not ATT States Parties,117 and its leadership in this area could have a marked effect on the behaviour of other arms-exporting States Parties.
96.Mr Feeley-Sprague, of Amnesty International, elaborated:118
what we are actually saying here is that for open general export licences—the most permissive export licence that exists—if you have not signed the ATT you should not be an eligible destination for an open general export licence. That does not mean that you are not eligible for another type of export licence—a single individual export licence. You can apply for that through the normal channels.
97.Elizabeth Kirkham, of Saferworld, told us that she did not think such a presumption of denial would cut across the Consolidated Criteria:
In the consolidated criteria, criterion one is about the behaviour of the recipient vis-à-vis the international community, so having a presumption of denial to non-signatories or non-parties to the ATT would represent an assessment of the behaviour of the recipient in that regard. So it is consistent with the criteria.119
She added:
we are not arguing that we should not sell arms to any country that has not signed the ATT or ratified the ATT and put that into practice. We are suggesting that in terms of implementing our arms export policy in practice, the fact that the country has ratified the ATT and put its measures into national implementation should be a guide to maybe that country being one that can receive OGELs. There are other measures as well that would be in play there.120
98.Mr Everitt, of ADS Group, stated that:121
As an industry, we have been a strong supporter of the arms trade treaty. Anything and everything that helps to support and ensure that that is taken up in the widest possible sense we would see as an important thing.
99.When we asked Sir Alan Duncan about this proposal, he told us:122
We do not necessarily want to assume that we should do no business with such countries if they have not signed up when we are in the process of trying to encourage them to sign up. We apply the consolidated criteria, and of course criterion 2, on that case-by-case basis. We always have in the back of our mind the efficacy and importance of the arms trade treaty, but a presumption of denial could actually end up being counterproductive in that area.
100.Mr Stuart explained that: “whatever presumption you start with, you will go down the criteria […] You can start presuming what you like, but you have to ensure that everything is checked against the criteria.” Sir Alan added that: “the consolidated criteria include the provisions of the arms trade treaty.”123
“Human Rights Priority Countries”
101.The FCO publishes an annual report on Human Rights and Democracy, in which it lists countries of “wide-ranging concern”. The department states: “Each report incorporates comments and recommendations that have been received over the course of the previous year from the House of Commons Foreign Affairs Committee and from a number of human rights non-governmental organisations.”124
102.Mr Feeley-Sprague, of Amnesty International UK, argued that there should also be a presumption of denial relating to applications for exports to countries on this list:125
Given that licensing is supposed to be allocated towards risk, for that set of countries that are problematic there should be a change in the way the system is implemented. We should be looking for a presumption of denial to be put in place for licences to those countries. That does not mean that you are saying that you cannot sell them any weapons, but it means that you start from a position that is different from what it is now […] You start from a position that says that we probably will not sell them, so we have to go that extra mile to work out why we should.126
Conclusions and recommendations
103.It has been suggested to us that staff of the Department for International Development should form an integral part of the Export Control Joint Unit. Given that that Department does have a particular role in relation to Criterion 8 (concerning sustainable development), there may be a case for changing the composition of the Unit in this way. The Government should give formal consideration to this proposal and set out clearly, in its response to this report or in correspondence, the reasoning behind the conclusion it reaches.
104.We accept that it is entirely appropriate for Ministers to be involved in both setting the criteria and principles for dealing with licence applications and in dealing with difficult cases that involve clarifying the interpretation of those criteria and principles or otherwise setting a precedent. However, we note that there is concern about the circumstances under which cases are escalated up to Ministers and the basis for some of the decisions that result. In the interests of transparency and political accountability, the Government should set out clearly, in its response to this report, the grounds on which individual cases are selected for consideration at ministerial level, with reference to the Consolidated Criteria and the six thresholds. It must also ensure that such cases are clearly identified in the Annual Report on Strategic Export Controls.
105.We have heard a proposal for a “presumption of denial” in respect of open licences for exports to countries that have not signed the Arms Trade Treaty; and a similar proposal in respect of countries that are on the Foreign Office’s list of “Human Rights Priority Countries”, as set out in its Annual Human Rights Report. We can see that there are arguments for and against both proposals. The Government should review these proposals and report back, either in response to this report or in correspondence, with its findings.
106.In any case, we believe there must always be a more stringent process in place for any arms exports to such countries, so the Government will be able to show, if such arms exports are approved, that they would not be in breach of the Criteria.
107.We have not looked in depth at the adequacy of the existing Criteria (although we have considered the possibility of adding a wholly new Criterion, regarding corruption—see below). This is a matter to which we plan to return in our future work, particularly in respect of Criterion 2c.
81 Before the Code of Conduct there were eight Common Criteria for the assessment of arms-export applications, which had been adopted by the European Council as early as 1991–2.
82 Article 6 of the Common Position does, however, mandate the application of the Common Position criteria in respect of dual-use items “where there are serious grounds for believing that the end-user of such goods and technology will be the armed forces or internal security forces or similar entities in the recipient country”.
84 HC Deb, 25 March 2014, cols 9–14WS
85 Written evidence to the Foreign Affairs Committee, Foreign and Commonwealth Office (AEX0001), December 2016
86 HC Deb, 25 March 2014, col 10WS
87 Written evidence to the Foreign Affairs Committee, Foreign and Commonwealth Office (AEX0001), December 2016. This evidence was submitted for an inquiry into FCO policy on arms exports. The inquiry was closed before the Committee could issue its report, due to the calling of the unexpected general election of June 2017.
88 Oral evidence taken before the Foreign Affairs Committee on 13 December 2016, HC (2016–17) 868, Q2
98 HC Deb, 25 March 2014, col 11WS
99 R (Campaign Against The Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726 (QB), para 210
100 R (Campaign Against The Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726 (QB), para 192
101 R (Campaign Against The Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726 (QB), para 60
106 Q194; cf Dr Anna Stavrianakis (UAE0004), para 7. The e-mail concerned, dated 11 February 2016, is from Edward Bell to the Permanent Secretary at the then Department for Business, Innovation and Skills, Martin (later Sir Martin) Donnelly and another official, Samantha Beckett. Parts of it have been redacted. The salient sentence reads as follows: “There is a lot at stake here politically but if you accept that the threshold for ‘clear risk’ of a serious violation of International Humanitarian Law has not been breached then it is permissible to take wider factors – such as diplomatic and economic relations – into account. If you do not accept this then it’s not permissible to do so.” It has been published online by CAAT.
113 E-mail from Edward Bell to Martin Donnelly and Samantha Beckett, 11 February 2016; R (Campaign Against The Arms Trade) v Secretary of State for International Trade [2017] EWHC 1726 (QB), para 203
117 These are Afghanistan, Algeria, Botswana, Canada, Egypt, India, Indonesia, Kazakhstan, Kenya, Kuwait, Namibia, Oman, Pakistan, Qatar, Russia, Saudi Arabia and Sri Lanka – Foreign and Commonwealth Office, Arms Trade Treaty: UK Annual Report, 2016.
Published: 18 July 2018