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Reconvening the Committees on Arms Export Controls (CAEC)

The UK Working Group on Arms, of which AOAV is a member, urges the reconvening of the Committees on Arms Export Controls (CAEC), with a full-time clerk. For several parliaments, the CAEC has provided important cross-party oversight of and input into legislative and policy development regarding the UK’s strategic exports.  It is vital that this continues, not least at a time where important questions on arms sales policy dominate the news. This is essential both to the scrutiny of a difficult area of policy and practice, and also to the UK’s continuing role as a world leader in oversight of executive decision-making in this area.

The Role of Parliament in Oversight of Arms Sales Policy and Practice
Oversight of arms sales is, and should be, a job for Parliament.  This has been the case in the UK for the last 20 years or so, and we would hope that if Parliament had been properly informed and wielding effective oversight in the 1980s the UK’s egregious policy and export decisions with respect to the Iran-Iraq war would have largely been avoided.  As the 1996 Scott Report noted: a well-informed Parliament has a critical role to play in preventing executive excess.  This has just been confirmed by the recent High Court decision in the judicial review brought by Campaign Against Arms Trade (CAAT), which made clear that the Court was extremely reluctant to ‘overrule’ HMG when it comes to licensing decisions and that this is much better a job for the legislature in general, and an institution such as the CAEC in particular: … the role of the Court can properly take into account that there is an expectation, consistent with democratic values, that a person charged with making assessments of this kind should be politically responsible for them (see Lord Hoffmann in Rehman at [62] and Lord Sumption in Lord Carlile at [32]). In the present case, ministers have appeared before the Parliamentary Committees on Arms Export Controls and the All-Parliamentary Group on Yemen; ministers have also spoken in parliamentary debates on Yemen, made oral and written statements, responded to urgent questions and answered a wide range of parliamentary questions and ministerial correspondence.[1]

This is a key reason why the Court declined to uphold the challenge:

For these reasons, in our view, the particular context of this case necessitates that considerable respect should be accorded to the decision-maker by a Court.[2]

The seriousness of the case of arms supplies to Saudi Arabia during the Yemen conflict underlines that parliamentary scrutiny is most necessary in the most difficult cases. Where UK-supplied arms are being used in conflict by armed forces who lack the necessary training, effective targeting protections and rigorous monitoring procedures, the role of Parliament is vital. If HMG is to be held to account by voters for these life-and-death decisions, they must first be thoroughly scrutinised by Parliament. Having exercised an oversight function for many years, Parliament cannot abandon that role because it has recently become more difficult.

Issues that Require CAEC Scrutiny:
There are at least two major ongoing issues which the Committees need urgently to review.

First, there have been very significant developments in the past year on the subject of UK arms sales to Saudi Arabia, and the use of those arms in Yemen. The High Court judges acknowledged “a substantial body of evidence suggesting that the Coalition has committed serious breaches of International Humanitarian Law in the course of its engagement in the Yemen conflict.” Further, HMG placed much new material in the public domain during the Court case, which the CAEC could usefully examine in relation to these questions.

Second, Parliament also has a vital role to play in considering consequences of Brexit for arms transfer controls. Several key components of the UK’s arms export control system are closely intertwined with complex legal and intergovernmental systems at the EU level.  There has so far been little detailed scrutiny of the impact of Brexit on the functioning of our arms export control system, but with some analysis now emerging (see for example the recent Saferworld paper Brexit and the future of UK arms transfer controls), it is already apparent that the unique characteristics of the EU arms and dual-use transfer control regime argue against leaving this to the Select Committee on Exiting the EU alone.  Additional, specialised parliamentary oversight, such as can be provided by the CAEC, will be essential.

The CAEC has also played a key role in developing and strengthening UK arms export control legislation and practices more generally. It was instrumental in promoting controls on arms brokering, notably on small arms, light weapons and ammunition, and on HMG’s decision to expand these controls to apply extra-territorially. The CAEC has also played a key role in strengthening government reporting over arms sales, for example in the shift from annual to quarterly reporting of arms licensing and the creation of new on-line reporting tools.  There is however more to be done, with the CAEC recently pressing for a register of arms brokers, controls over subsidiary companies overseas and efforts to better regulate “brass plate” companies.  All this, while continuing to draw significant attention to UK arms sales to countries on the FCO list of countries of human rights concern.

It is no exaggeration to say that the UK has one of the best systems of parliamentary oversight in the world, one which civil society has presented on many occasions as a possible model to many other states with less-robust arms export control systems. The work of the CAEC has encouraged MPs in many other jurisdictions to think about how they can play a part.  This has been the case in other EU Member States, but also in cultures where governments discourage any oversight of their supposed national security prerogatives, and where it could be argued that parliamentary oversight of executive authority is most needed.  Were Parliament not to reconvene the CAEC, in addition to being negative in the national context, it would send a signal to others that the UK is becoming less committed to effective arms transfer control and to effective oversight.  It is highly likely that this would at a minimum act as a brake on improvements elsewhere, with every chance it would encourage others to go backwards too.

As this briefing suggests, there is a great deal for the CAEC to be looking at in this Parliament, and the UK Working Group sees the need for a full-time clerk, with appropriate resources, to properly staff inquiries by the Committee. This was the case until 2015, when the CAEC was probably at its most effective, and it seems to us necessary to provide proper support to members in this Parliament.

[1] THE QUEEN on the application of CAMPAIGN AGAINST ARMS TRADE, Judgment for Handing Down, Neutral Citation Number: [2017] EWHC 1726 (QB),10 July 2017, para 33.

[2] Ibid, para 35.