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The legal and regulatory framework for UK arms exports

Published Friday, June 9, 2017

This briefing provides an overview of the development of the legal and regulatory framework for UK arms exports since 1997. It also describes the main changes to this regulatory framework under the 2015-17 Conservative Government. During the last parliament there was also controversy over the use of UK-manufactured arms by Saudi Arabia in Yemen. Looking ahead to the new parliament, some might take the view that it would be desirable, before Brexit happens, for there to be new legislation confirming the binding status in UK law of the current version of the Consolidated Criteria.

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From arms-to-Iraq to today’s framework

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.

Developments under the 2015-17 Conservative Government

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.

Issues for a future Government

Brexit and the Consolidated Criteria

The vote to leave the EU in the June 2016 referendum placed a question-mark against the applicability of law derived from the UK’s membership of the EU after Brexit happens.  

In relation to arms exports, European Council Common Position 2008/944/CFSP (“The Common Rules Governing the Control of Exports of Military Technology and Equipment”) has been widely cited as the basis on which the Consolidated Criteria became legally binding in the UK.

The wording used in the 2008 Common Position is extremely 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).

While the Great Repeal Bill White Paper has plenty to say about the future of EU Regulations and Directives, it has less to say on the fate of EU-derived law arising from the many Common Positions  – or as they are called today, CFSP Decisions – to which the UK has become bound during its EU membership.

The 2008 Common Position is not directly applicable in UK law. It is likely treated in a similar way to Directives – that is, incorporated into UK law via an Act and/or Statutory Instruments, with their texts amended as appropriate.

If – as we think is the case – this does apply to the 2008 Common Position, some might consider that the binding status of the Consolidated Criteria after Brexit is already sufficiently safeguarded.

However, it is worth noting that its current status in UK law is ‘guidance’ under the Export Control Act 2002.  In this context, it appears that it is the duty to provide guidance, rather than the content of the guidance itself, that is legally binding in UK law. This might be of concern to some observers.

Concerns might be also expressed 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. The Government of the day considered that the changes were relatively minor and did not involve “any substantive changes in policy”. However, at the time, the Committees on Arms Export Controls were not convinced.

Given all this, some might ask whether it would be desirable, before Brexit happens, for a future UK Government to confirm through new legislation the binding status in UK law of the current version of the Consolidated Criteria.

This may be an issue that future parliamentary committees with an interest in the UK’s legal and institutional framework for strategic exports could look at ahead of Brexit.

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 new Government may want to provide a full explanation of its position.

Judicial review pending

The outcome of the judicial review on the Government’s refusal to suspend arms exports to Saudi Arabia is pending. If the High Court finds against the Government and orders it to reconsider its decision, this could have implications for the UK’s legal and regulatory framework for arms exports.

Future of parliamentary scrutiny

Parliament will also have to decide how best to scrutinise UK arms export policy in future. It could either 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’.

 

Commons Briefing papers SN02729

Author: Jon Lunn

Topics: Arms control, Defence policy, Human rights, International politics and government, International trade

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