Following the Appeal Court decision of 20th June 2019 (High Court documents, full judgement and press summary, the UK Government affirmed that it would respect the Court’s decision and that it would NOT issue any new export or trade control licences for the supply of anything subject to control to any of the Saudi Arabian-led coalition partners active in Yemen (including: UAE, Kuwait, Bahrain, Jordan, Senegal, Sudan and Egypt) where it is suspected that the materiel involved might be intended for use in the war in Yemen, until such time as a new process has been agreed for the assessment of Criterion 2C, covering an aspect of international humanitarian law.
This has also caused amendments to be implemented relating to relevant Open General Export Licences, in response to the Appeal Court’s ruling.
In the meantime, the 15th October statement to the House of Commons by the Foreign Secretary, Dominic Raab MP, on the situation with regard to Turkey’s operations in northern Syria, which similarly announced a suspension of new licence applications to Turkey for materiel that might be used in northern Syria, has added to the problems and delays that are being currently experienced by UK exporters.
On 16th and 26th September 2019 the Secretary of State, Liz Truss, admitted to Parliament that there had been multiple inadvertent breaches of the court rules, prompting an urgent investigation to establish whether there had been further infringements. The news that some export licences had been inadvertently approved for the supply of items to coalition partners for use in Yemen caused significant embarrassment for the UK Government; these cases related to the supply of:
- A £200 air cooler for a Renault Sherpa Light Scout vehicle had been issued to the RSLF;
- 260 items of radio spares for the RSLF Signals Corps valued at £435,450;
- Fuel gauges for Jordanian military aircraft; and
- A contract to repair some RSLF equipment for IOD detection.
All granted licenses were not used and were revoked. As a direct result of these admissions, the UK Government was forced to put in place an interim process with extra levels of scrutiny and assurance for relevant licence applications. This interim process is also being used for Turkey applications.
The Government re-affirmed that for any controlled items are to be exported for the time being, then it HAS to be related to contracts covered by PRE-EXISTING export licences (issued prior to 20th June 2019), and it cannot be covered by any new licences. HMG is still processing those licensing cases that definitely do not have a potential use in the Yemen conflict, although some cases which seemingly fall into this definition are also being inadvertently caught up. We understand that the new licensing process for the consideration of Criterion 2C (which was explicitly criticised in the Appeal Court’s ruling) has been worked on by the Foreign & Commonwealth Office, for ratification by all relevant UK Government departments.
The Export Control Joint Unit is very well aware of the impact this current situation with the licensing position for the Saudi-led Coalition and Turkey is having for UK exporters. However, as there is an undertaking to the Court of Appeal, and a statement to Parliament for both the conflict in Yemen and Turkish military operations in Syria, then HMG is bound by them. The ECJU has continued to issue licences for items that they do not believe have a potential use in Yemen, nor a potential use for Turkish military operations in Northern Syria. Cases that can be processed for both the Saudi-led coalition and Turkey are taking longer, due to the extra assurance and Ministerial sign off. The ECJU has been seeking to work with DIT DSO and Industry to prioritise cases, as best as it can, but, due to the nature of the undertaking to the Court and the statements to Parliament, it is just not possible to issue some licences and these are being held.
The ECJU has also agreed with some of the larger companies that it would be helpful if they could work with their supply chains to identify projects/programmes where licence applications could be “brought together”, so that once HMG is able to start making decisions again, it will be more efficient and effective. That will require companies agreeing to discuss applications jointly and providing something in writing, as the ECJU cannot break the need for commercial confidentiality.
The ECJU is still awaiting a final agreement on the new Criterion 2c processing position, and they do not expect to be able to re-start the taking of decisions for at least a month, or so, at the earliest. It will take, if things do not drastically change, 2-3 months to clear the backlog that has been building up since last year.
The position on Turkish military operations in Northern Syria is still the same, in that the ECJU is not issuing new licences that might potentially be used for Turkish military operations in Northern Syria. The ECJU is moving forward on this, as well, but, the ECJU believes that it might be at least another month before they just go back to just assessing licences against the Consolidated Criteria, alone. Again, the ECJU is processing cases where they believe that the items in question do not have a potential use in Turkish military operations in Northern Syria, although, once again, we are aware of some cases which seemingly fall into this definition are also being inadvertently caught up.
If any companies have any queries, they can make contact with:
Mr Brinley Salzmann
Director – Overseas & Exports
Hampshire GU14 6FD
Tel: +44 (0)20 7091 7822
Mobile: +44 (0)7717 173670
Fax: +44 (0)20 7091 4545
E-Mail: [email protected]