Law or politics?

Did the government have to suspend arms sales to Israel last year?

Was the UK government required by law to suspend arms exports to Israel last autumn? Or did ministers have a discretion? Those questions will be raised in the House of Lords this afternoon by the former home secretary and Conservative leader Lord Howard of Lympne CH KC.

Lord Howard of Lympne CH KC

On 3 September last year, the foreign office minister Baroness Chapman of Darlington told peers:

The UK’s robust export licensing criteria state that the government will “not issue export licences if there is a clear risk” — not if this has happened, but if there is a risk — “that the items might be used to commit or facilitate serious violations of international humanitarian law”.

On completion of that review, this government concluded that a clear risk did exist. This means that, under the criteria, we are required to suspend certain export licences for items that could be used in the current conflict in Gaza.

But Howard says this contradicts a statement made in the Commons the previous day by the foreign secretary. David Lammy said:

This suspension will not prejudice the international, collaborative, global F35 programme that supplies aircraft for more than 20 countries, which is crucial to wider peace and security. Indeed, the effects of suspending all licences for the F35 programme would undermine the global F35 supply chain that is vital for the security of the UK, our allies and NATO. Therefore, the business and trade secretary has exempted these licences from his decision… Commitment to comply with international humanitarian law is not the only criterion in making export licensing decisions. (emphasis added)

Lammy was apparently referring to criterion 5 of the strategic export licensing criteria, issued under the Export Control Act 2002. This guidance says that when deciding whether to ban arms exports the government will take into account “the risk of the items undermining or damaging the UK’s national security” as well as the national security of friendly and allied countries.

Introducing the licensing criteria in 2021, the international trade secretary said 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 recognises 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.

The former Conservative leader put the apparent contradiction to Chapman on 5 September:

But Howard was not satisfied with this answer. He believes that Chapman’s statement on 3 September “flatly contradicts” Lammy’s statement on 2 September. In the Lords today, he is expected to repeat his claim that the minister’s answer was both factually incorrect and grossly misleading. And he is likely to refer to the ministerial code, which says:

It is of paramount importance that ministers give accurate and truthful information to parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead parliament will be expected to offer their resignation to the prime minister.

It’s also worth noting that Chapman appears to have disclosed legal advice that the Foreign Office had received from the attorney general. She said, in the passage quoted above:

The legal test we have is that there is a clear risk, and the advice we received was that in the case of these 30 licences it could present a clear risk — not that it has done, not that there is a breach, but that there is a clear risk.

On 28 October Lord Hermer KC told Howard that advice given by the attorney general was not disclosed outside government.

Comment

Refusing to answer a question in parliament may be acceptable. Giving false information is not — regardless of the issue.

Update 26 March: the full exchanges can now be read in Hansard.