Welcome to today’s hearing of the Business and Trade Sub-Committee on Economic Security, Arms and Export Controls. I thank Ministers and officials very much indeed for joining us for this afternoon’s hearing on the control, or otherwise, of export licences to Israel. Let me start by saying that it is unfortunate that information that we required back in the summer arrived with the Committee only on Friday evening, after the necessity of a point of order on Thursday. I hope, going forward, that the Committee’s requests for information will be replied to rather faster. John Cooper is going to open—

If I might, Chair—

In a moment, Sir Chris. John Cooper is going to open the questioning for us.

Sir Chris, as of 31 July 2025, your latest statistics indicate that 55 export licences are open where “the Government of Israel is the end-user or a potential end-user.” Can you tell the Committee how you have assessed that these exports do not have combat utility in the conflict in Gaza?

If I may, I will respond to the previous point. First, I want to apologise to you, Chair, and to the Committee, on behalf of all three Departments, for the delay in responding to your letter of 13 August. We would have wished this to have happened much more swiftly than it has done, and I hope we will be able to make sure that that does not happen again in the future. I think you will understand that last week was a little bit—there was a little bit of movement, shall we say, in Government. But we did manage to get the response to you eventually, on Friday, and I hope you will not need to do any more points of order to the House to make—

I am grateful for your reassurances.

I should also say that while of course today is about export licences, all three of us are fully cognisant of the horrific situation that is ongoing in Gaza. There are still people who have not been reunited—the hostages with their family and loved ones—and the misery continues. We want to make sure that everything that we do in our export licensing, which I believe to be the most robust and transparent in the world, ensures that none of what we license is used for anything that would possibly be used in Gaza at the moment for the repression of human rights. I am confident that the licences that you refer to meet that criterion.

You are confident of that, but can you give us some clue as to how you have assessed that? How has your assessment worked?

Every single licence application is assessed when it comes into the joint unit, which is a joint unit between the three Departments. We keep all the extant licences under review all the time. There has been a review of some of them again this summer. Some licences have expired, including some of the ones that were suspended last September. I know there are some people who would say that we should put more things on the controlled list. The danger of that is that it is not just a controlled list for Israel; it is a controlled list for everywhere in the world. I have used this example elsewhere: when I was in Argentina in the 1980s, I knew people who had been tortured using electric cattle prods, which were exported from the UK to Argentina and were being used for repression. Some people would argue that we should say that electric cattle prods, therefore, everywhere in the world—

I urge you to keep the focus on how you know that the extant licences for exports to Israel do not concern equipment that is being used for the violation of human rights in Israel, Gaza or the west bank.

Because, first of all, the original assessment, which I was trying to explain, is that we control certain items. Those controlled items have to go through a rigorous export licensing process. People in the Department assess every single one, and we assess the situation in Gaza as to what might or might not be used. For instance, some of the items are for trainer aircraft. We have assessed precisely whether those could in any sense be used in Gaza and would undermine international humanitarian law. We do not think that they can be, could be, or are being used in that way.

It is not a bespoke system, then. If I am getting this right, you seem to be saying that the controlled list is global and there is not a bespoke list for Israel. Am I picking that up incorrectly?

The system is global. It exercises regardless of the country. We deal with—I think—some 10,000 licences every year across the whole world, and they are not for every single item that could possibly be exported to another country. If we were to introduce such a measure, that would severely limit British trade with other countries. The system applies to things that are either military or dual use, and there is a very long list of things that are considered in that. Any of those items need an export licence to be exported to Israel or to any other country.

Critical to this issue is the F-35 programme. Can you give an indication of how many of the 55 extant licences are for exports to the global F-35 Lightning II programme?

The F-35 is a matter for the MOD, I am afraid.

In terms of the licences you sign, how many of the extant licences concern the F-35 exports?

Of the 55 you refer to, Mr Cooper, nine are for the F-35 programme.

So that we have all the numbers, I should say that, as of 31 July, there are 347 licences extant, three have been suspended, 167 are for military equipment, 84 concern goods that are re-exported from Israel, 21 concern research and development, seven concern academic and civilian use, and the Government of Israel is the end user in 55, of which nine concern the F-35 programme. Have we got those numbers correct?

Just one thing, which is that three of the 167 military ones were suspended military licences.

Three of the 167?

Yes.

You talked about the suspended licences, of which there are only three—a relatively low number. What assessment have you made regarding the suspension of items that might be used in Gaza? Has that made any real difference to the conflict? What I am driving at is that there is a very low number of suspensions; have you proof that that has made a material difference to the conflict in Gaza, or is this simply window dressing? Is this a sop to people who want, effectively, to punish Israel in some way?

I am not quite sure what the tenor of your argument is in that question.

Simply that you have suspended three licences; what assessment have you made of the effect of that on the conflict in Gaza? Has it made any material difference at all?

Well, it means that they are not able to use them. And we have suspended more licences. It is just that three of the licences that are extant and that would have been continued, because the licences are normally for two years, have been suspended. There are others that were suspended on 2 September last year.

I grasp the mechanics of it, and I know that three are suspended. My question is: what assessment have you, or the Government, made, in the round, of the effect of the suspension of those licences? Have you done any work on what effect that is having on the conflict?

That is not the job of the DBT; that is a matter for the FCDO.

I am happy to come in, Mr Cooper. As my colleague just explained, we have suspended more than three licences. On the kind of things we have suspended, since 2 September there have been 76 military licences, including the F-15—it is a range of equipment, not the whole item—the F-16, Apache attack helicopters and all types of combat and targeting drones, as well as naval vessels involved in Gaza operations. It also includes things like equipment, body armour, helmets and uniforms that would be used by IDF troops. We still export those items where the IDF is not the end user—for example, where NGOs are using that equipment. There are a number of open licences covering a wide range of military goods, from light weapons to printed circuit boards. We have sought, in the distinctions that I think you are pressing us on, to distinguish between items that can be used in Gaza and items that cannot be used in Gaza because of their nature.

Let us put the question the other way around, then. There are 55 licences open for which the Government of Israel are the end user. Nine of those concerned F-35 parts, so 44 concern other things. What do those other 44 extant licences cover?

Again, that is not for me, I’m afraid.

The kinds of things they cover include trainer aircraft and components for escape systems, navigation and onboard pressurised air and breathing systems for submarines. There are a number of training items, including items that go to forces that are not the IDF—things like flight simulator equipment, CBRN training and some air defence components that can only be used in the Iron Dome and cannot be used for offensive purposes.

And you are reassuring the Committee that none of those 44 licences support or enable Israeli military operations in Gaza.

I am. That is the test we have set ourselves and that is the test against which all three of our Departments are making assessments.

Given the dynamic nature of combat operations in Gaza, how can you be sure, week to week, that that judgment is still accurate?

For instance, in relation to the trainer aircraft that I was talking about, we have made a very clear assessment—we rigorously looked at it, and we have looked at it again this year—of whether any of the equipment in those trainer aircraft could possibly be used in fighter combat, and they cannot be. We can see no way in which they could be, and we have seen no evidence that they have been.

But it could be used for training pilots who are then in combat over Gaza.

That is a perfectly legitimate question that I have asked myself. But the assessment is that the training of an aircraft pilot on such equipment would take so long that they would not be among the people who would now be engaged in fighter combat in Gaza.

So nothing in those 44 licences is actually enabling operations or IDF personnel in the war in Gaza.

Yes.

I think there is confusion here. As you know, in the UK’s export control arrangements there are two categories of things that have to be subject to an export control licence: the first is military and the second is dual use. Military covers a very wide range of things could be used but may not be used at all in a lethal context. Sometimes people conflate this. For instance, the use of some of the licences relate to parts for submarines. The assessment we have made is that that is not being used in any sense in any way in relation to Gaza.

There are 84 licences that we have authorised on the basis that they are for re-export to a third country. In a period of international uncertainty, it is obviously the case that some components from the UK going to Israel will end up in a third country. Israel’s expertise in drones, for example, is well known. It is likely that lots of that re-export will be to our allies. We have not sought to restrict a component from Israel leaving and going to Ukraine or somewhere else. We do take action where we think it will end up in Gaza. Some 50% of the extant licences are for re-export and third country. We take quite a thorough approach, compared with many of our comparator countries, to ensure that we focus on the final destination rather than simply the country we are trading to.

In the broadest possible sense, yes it is. I want to be as open as I possibly can be in the information that we give to the Committee. There do have to be some parameters around that in terms of the commercial sensitivity and security of the individual companies, but within those parameters I am happy to be as open as possible. To add to Mr Falconer’s point, he is absolutely right that 50% of that figure is not ending up in Israel; it is going elsewhere afterwards. Roughly somewhat less than a third ends up in Israel with the Israeli Government.

What is the tempo of the assessment of whether the equipment we are licensing is used in Gaza? Is it done weekly, monthly, or every so often when you get round to it? How often do the assessments take place, given the dynamism of what is happening on the ground?

It might be best if we go to Rosemary, who is most directly engaged in that.

There is regular assessment. The important thing to start from—

We know it is regular; we are trying to work out how regular.

The licences are kept under continual review. We have continued to keep the licences under review, particularly when we have new information that comes to light. Relevant licences can be revisited—we can review them—and we have suspended further licences in that time.

I should make a correction to what I said to Mr Western earlier. The numbers that he referred to are the maximum value that will be allowed under the licence. It is not necessarily the amount that actually ends up going out under the licence, which may be considerably smaller.

I am still not clear how frequently these reviews take place. Once you have got your feet slightly further under the table—

I am happy to answer. Most licences last for roughly two years, so there is an end date to every licence and there has to be a process of reapplication. That is why some of the licences that I was referring to earlier, which have been suspended, are still extant, if you see what I mean, but they will come to an end.

I am conscious that this descent into barbarism continues to plumb new depths each week, so I am interested in how often you are asking your officials to look again at what equipment the Israel Defence Forces are using to make sure that we are not complicit in what is going on in Gaza.

There has again been a moment in this last week where we have been able to do that, because the new set of Ministers are asking questions about whether we are absolutely certain about these particular licences.

It is important to distinguish between two sets of assessments. One is licence by licence, as the three Departments do their work, and the other is the international humanitarian law assessments that the Foreign Office is responsible for, which we do on a roughly six to eight-week rolling basis. That means we are inevitably basing our assessments on the past. I am very conscious, as you are, of the developments that we have seen in Gaza over the summer. We are currently considering the latest IHL assessment—or more properly, the Foreign Secretary will shortly consider it—which will take us up to the end of June.

Are you happy that when those reviews are published—and the last five or six have concluded that Israel is not in compliance with IHL—that there is an exercise in the DBT that checks the 55 licences to see whether they should be cancelled?

I am satisfied that the three Departments review that very carefully, and that with each assessment we make sure that is cascaded through the system.

The other important thing is that it has to be proportionate to the kind of licence it is. There are licences where the area might be more ambiguous, and those should receive more rigorous and regular reassessment. Then there are others that are still controlled goods, but they are going to journalists and others, for instance.

I am more concerned about the 55 end-user licences where the Government of Israel are the end user.

I understand that, but we have to consider all of those because they might move between one and another.

What burden of proof is on the Government of Israel to demonstrate that they are re-exporting those products, as opposed to using them in Gaza?

The point of the case-by-case licensing process is that all of that is managed before it leaves the UK. Once an item leaves the UK—

So there is no burden of proof on Israel to demonstrate that it has done what it said it would do and export it?

Once an item leaves the UK, the UK does not have control over it. That is the point of the very intensive assessment of the case-by-case licensing system, based on extensive information from the FCDO and MOD, which is the point of the joint unit.

So we just take it on good faith?

We do not take it on good faith; we take it on very careful assessment of information done by experts in post.

Why would you not ask for export proof from Israel, so that if it says that it will export these things, it can demonstrate that?

Because our relationship is with the exporter. If there were to be any evidence at any point that that is not where it was ending up, that would be a breach of the licence, and we would be able to revoke.

Given what is going on, would it not be prudent and sensible to insist on that?

No, because the work has to be done before we get to that point. I think you are misunderstanding the process.

I understand it.

My first question is to Minister Falconer. On 1 September, the then Foreign Secretary sent a letter to the Chair of the International Development Committee referencing the genocide convention. The Foreign Secretary wrote, “As per the Genocide Convention, the crime of genocide occurs only where there is specific ‘intent to destroy, in whole or in part, a national, ethnic, racial or religious group.’ The Government has not concluded that Israel is acting with that intent.” Could you set out the reasons for the FCDO’s assessment of Israel’s intent?

If I might recap what our IHL assessment looks like and where the genocide convention fits within it: we have worked out a process on IHL assessment over a number of years, including in response to case law. We have often focused on whether or not there is a risk of a breach of IHL. As I have said to the House before, there are obviously other burdens that rest upon us under international law, including the genocide convention. None of these assessments takes away from the fact that it is courts that determine crimes that have been done, not the Government. Everything I am about to say is in reference to an assessment of risk. In reference both to breaches of international humanitarian law, particularly where they relate to conduct of hostilities, and of course to the genocide convention, there are very important questions of intent. Those questions of intent are difficult to determine. For the most serious crimes, of which genocide is the crime of crimes, that threshold of intention is very high. That is the threshold for which we ask officials to provide as full advice as possible against the facts before them. The former Foreign Secretary was referring to that exercise.

Mr Falconer, before you proceed, and before Mr Foord goes on, you have rehearsed that argument before the House on a number of occasions, as have the Foreign Secretary and the Prime Minister. Many of us were therefore surprised when the now Deputy Prime Minister wrote to the Chair of the IDC and said, “The Government has not concluded that Israel is acting with…intent.” There is a track record of statements where it sounded as if Ministers were not going to make judgments, but leave those judgments to the courts. We now have the Deputy Prime Minister appearing to render a judgment. Can you explain what appears to us to be a contradiction?

I can see the confusion, but to step back to the assessment process, the assessment is about whether there is a risk of serious breaches. It is not a determination. It is part of our efforts even before a finding of breaches, because of the various obligations on us. In the assessments that the Foreign Secretary, both present and previous, consider, they are seeking to make a set of risk judgments—not legal determinations, but whether there is a serious risk of, in this case, genocide taking place. Of course, the Foreign Secretary has access to assessments from officials on which he or she then makes a judgment about their legal obligations, but that is not the same as making a legal determination, which is obviously for the courts.

The judgment that he has presented to the Chair of the IDC is his conclusion that there is not a risk of genocide.

That he has not been able to make out through the process that there is a serious risk of genocide.

Would you go further and say that the Government have concluded that Israel is not acting with that intent?

We have had this debate in the Chamber a number of times, and I can feel the frustration of colleagues when, for example in relation to the conduct of hostilities, we are not able to reach the high threshold in our assessments of being able to be sure that the intent was disproportionate or something like that, despite the many grotesque incidents that we see. Case law is pretty clear that, in order to make a determination about whether the conduct of hostilities was in line with IHL, there is quite a high evidential bar that is quite difficult to meet if you are not part of the state in question. Judges have noted that, often, targeting decisions are made on the basis of intelligence that other states are unlikely to have access to. That creates a difficulty for us in assessing intent. Intent is a difficult thing to assess, as it exists in the mind of others. There are other things that you can look to—

It exists in the mind of others, but it also exists in their statements. We have heard from former Cabinet Ministers of the Israeli state phrases such as “fighting human animals”. The International Association of Genocide Scholars has deemed that there is a genocide taking place in Gaza. Do you not feel that it is a responsibility of the British Government to make a determination as to whether or not genocide is taking place in Gaza?

I think it is a responsibility of the Foreign Secretary and the whole Government to make an assessment of serious risk, not a determination of genocide—that is for the courts. She and her predecessor do that very seriously on the basis of an assessment process into which we put a lot of effort to try to make these determinations. You mentioned statements made by previous, and indeed current, Cabinet members of the Israeli Government, which I have condemned in the House. There is absolutely no illusion on the part of the British Government about the gravity of what is happening in Gaza, but that does not take away from us the very solemn obligation to apply ourselves to the legal tests—not to make determinations, but to make assessments of risk.

Of course, the problem with that approach—assessment of risk rather than determinations—is that the determinations can come so late that the British state will be unable to do anything about it. The last time that the UK recognised a genocide as having taken place, the determination around Daesh and the Yazidis, the genocide was said to have taken place nine years prior to the determination. Surely leaning only on risk, and not seeking to make a determination, falls short.

I don’t think so. I have been the middle east Minister since we have been the Government. We made a very early assessment, a very solemn assessment, that there was a risk of serious breaches of international humanitarian law in Gaza. Since that point, we have taken a whole range of actions, Mr Foord, in relation to suspending the licences that I described earlier, three waves of sanctions, restoring support to UNRWA, and removing the previous Government’s objections in relation to the International Criminal Court. Over the coming days, we will make very solemn determinations about our position in relation to the recognition of a state of Palestine. We have done a whole range of things, recognising the seriousness of what is before us. That does not require a legal determination of any particular international crime. We have already triggered the much lower bar—it is a very serious bar—of a risk of a serious breach of international humanitarian law, and I and other Ministers have taken action in response to that.

In our previous ministerial evidence session, we explored the fact that the FCDO had reached the conclusion that there was insufficient information to decide in 411 out of 413 alleged incidents of breaches of IHL. Do you know what the latest figure is from the IHL compliance assessment process?

The latest assessment will be very shortly before the Foreign Secretary. The overall point that you make is correct: there are a whole range of incidents, many of which I have decried from the Dispatch Box, on which we are still unable to satisfy ourselves sufficiently of the evidential threshold to be sure that they risk being breaches of IHL. You will have seen the extent to which the very facts of what is happening in Gaza are so often contested by all sides of the conflict. I would say to the Committee, as I have said to the House, that the fact that it is difficult to make those assessments with full confidence does not take away from the overall judgment that we have made. The way I would characterise it is that you have a set of questions around the conduct of hostilities, a set of questions around aid—we consider Israel to be the occupying power in Gaza, and IHL is clear on the obligations that then fall—and a set of questions around detainees. The questions about aid and detainees are easier to answer, because they require less insight into the minds of those making decisions. Because those are clear elements of IHL on which we can more easily satisfy ourselves that there is a serious risk that Israel is in breach of its commitments, we can make an overall determination without seeking, in every one of those incidents you describe, to enter into an argument about the facts of the case—an argument that is very difficult for us to conduct from outside Gaza without international journalists there. We have reached a conclusion, a very sober conclusion, about whether we can have confidence in Israel’s adherence to IHL in the way that I set out through the assessment process. That does not require us to make judgments on each individual incident.

Recent reports state that figures from a classified Israeli database suggest that five out of six Palestinians who have been killed in Gaza were not terrorists but civilians. Do Ministers recognise those figures?

For the reasons I have just set out, I am loath to try to give precision that does not exist in the British Government about the conduct of hostilities in Gaza. The horror of the scenes before us is obvious to all, and I have decried them repeatedly from the House of Commons.

The Spanish Government have taken a different view. The Spanish Prime Minister is prepared to refer to what is going on in Gaza as genocide. When we see our allies starting to shift their position, might the UK follow rather than lead?

We will follow the law, as we understand it, including as it is expressed domestically and internationally. We take these issues very seriously. How the Spanish consider these questions is a matter for them.

Let me just clarify the former Foreign Secretary’s letter. As I mentioned, he said, “The Government has not concluded that Israel is acting with intent”. That sentence could be interpreted in two ways. If we put the accent on the beginning of that sentence, we could say that the Government have not concluded, which would imply there is a process that is still ongoing. We could look at it another way and say that the Government have not concluded that Israel is acting with intent—a conclusion has been completed and arrived at. Is this determination still open, or have the Government come to a definitive judgment as of now that there is not a serious risk of genocide?

As I say, there is another assessment before the Foreign Secretary, and there will be another one after.

And that will include not just IHL breaches but a risk of genocide?

Yes, that will make an assessment against the tests of the genocide convention.

So there is a fresh test that is about to report to the House?

Yes, it is a fresh test, although the previous assessment also considered these questions. I would not want to give the Committee the impression that a new element of the assessment has been introduced for the new Foreign Secretary. There will be a fresh assessment in that every assessment has to look at the facts as they are on that day. It does not draw its conclusion from the last assessment, simply because that was the last assessment.

Given what the ICJ and others have said, many in the House and on this Committee will be surprised that the former Foreign Secretary arrived at a judgment that there is not a serious risk of genocide. When the new assessment is complete, will you set out the reasoning for any conclusions for the House, so we can see exactly how that conclusion was arrived at?

I think some of the reasoning was set out in the skeleton arguments in relation to Al-Haq, and I know this Committee has heard the debate about what the precise findings of the ICJ meant when it said there was a plausible case. I know you heard a debate between Lord Sumption and others about whether that was a finding of fact, or a procedural finding that the Palestinians have a right to be protected from genocide, which they obviously do. Of course, we will do our best to elucidate our reasons, but I do not want to prejudge the Foreign Secretary’s determination, which will be based on what she finds off the back of the assessment that is being prepared for her at the moment.

That would be very welcome. Many of us are looking at this and asking, “What is it going to take before the UK concludes that its duty to prevent genocide has been triggered?”.

I know that, in front of the Committee, Lord Sumption attended a bit to these questions about what the duty to prevent genocide involves, and about the reasonable steps to try to avert internationally wrongful acts, all of which are very important considerations. As I was saying earlier, I consider myself—and I know the whole Government do too—under a solemn duty to try to reduce the harm that is going on in Gaza, and we are taking a whole range of steps to try to achieve that. We can discuss either the licences that continue to be granted in relation to other goods, or indeed the F-35s, and talk about how that would relate to the harms that we see in Gaza. I think the findings they reached in the Al-Haq judgment in relation to the role of the F-35 in the loss of life in Gaza are quite important, which is probably worth expanding on at some point through the course of the Committee.

What we have done so far is establish that there are 55 extant licences where the Government of Israel are the end user, nine of which relate to F-35 parts. We have established that hitherto you have concluded that there is a serious risk of IHL breach, but you have not yet concluded there is a serious risk of genocide. We have some facts and assessments about what is going on. We now want to test your reasoning for how you think arms export licences remain legal.

Sir Chris, to recap, the strategic export licensing criteria are the means by which the Government ensure that their arms exports are in compliance with the UK’s international obligations. At the evidence session with this Committee last December, Ministers told us that the SELC—strategic export licensing criteria—were applied rigorously. However, we now know from the judicial proceedings that the Government have exempted their own SELC in their entirety in the context of the F-35 carve-out. This also includes exempting consideration of our obligations under the arms trade treaty. Why have you done this?

So—

Sorry, Sir Chris is the Minister of State at the Department for Business and Trade. I would quite like him to answer because he is responsible.

He is responsible for the SELC, and I am responsible for the arms trade treaty, so I would take issue with your question in relation to the arms trade treaty, but perhaps we can come back.

Okay, we will come back to you, but can Sir Chris please go first?

Sorry, because of that exchange, I am not quite sure what you are asking.

Why have the Government exempted their entire criteria for arms controls when considering the F-35 carve-out?

As you know from the skeleton argument that we made to the court in the Al-Haq case, which you have a copy of, we believe that while it is our duty to do everything we possibly can to ensure that any exports that we license are not doing material damage to the people of Gaza given the situation that exists there—because of our estimation that there is a serious abuse of international humanitarian law—

Why have you disapplied the criteria?

Well, the argument is in the case, but the primary point is that if we were able to dismantle the F-35 programme so as to take our element out of it, it would effectively be dismantling a process that is important to our national security and to international peace and security around the world, because it is part of a programme that requires consensus from seven different countries, where any one country could exercise a veto on changing that. You know that we made arguments to see if there was a means of removing ourselves from that in relation to export licences to Israel, and it was our judgment, accepted by the courts, that that simply would not be possible.

Let me put it another way: how can the Government be confident that they are complying with their international obligations if they disapply their own criteria?

Our assumption is that you assess whether you are in line with the arms trade treaty through the use of the strategic export licensing criteria. But in the case of F-35s, it would appear from the argument made in court that the entire battery of strategic export licensing criteria was disapplied. That includes criteria 1, which obviously requires you to respect the UK’s international obligations, as well as criteria 2 and, indeed, all the criteria set out.

From the very beginning, when the new criteria were laid out by the then Government under Anne-Marie Trevelyan, who was Secretary of State for International Trade in 2021, she clearly stated that the application of the strategic export licensing control is “without prejudice to the application to specific cases of specific measures as may be announced to Parliament from time to time.” That is precisely what we have done. There has been another instance where we have done that, which was in relation to Russia’s invasion of Ukraine, where we had to exempt in a similar way because there was an interim measure to halt exports in the early stages of the war while sanctions were being prepared by the UK. It is intrinsic to our being able to operate as a Government that we are able in exceptional circumstances to do so.

That is not what is in dispute. We know that you have the wherewithal to disapply the criteria, if necessary in their entirety, but the question is, how are you judging that the UK is still acting in accordance with the arms trade treaty if you have disapplied the criteria that you used to make those judgments?

That then is a matter, I’m afraid, for the Foreign Office.

As we set out in the skeleton argument, we take the view in relation to the arms trade treaty that article 7, which you have helpfully broadcast, does provide for a balancing act. It asks whether the conventional arms or items “would contribute to or undermine peace and security”. Article 7 asks in paragraph 3 whether there is an “overriding risk of any of the negative consequences in paragraph 1”. The Defence Secretary set out his quite stark assessment of what the impact would be of suspending the F-35 components from going into the global spares pool. In our view, that would undermine peace and security in other theatres. We have seen F-35s fly in Europe over the course of the last week in defence of our allies. To bring down the F-35 programme in the way that the Defence Secretary outlined would, in our view, trigger article 7(1) and article 7(3).

To answer the question about how we assess, of course, we are making an assessment on the basis of what the Secretary of State for Defence has advised us, which is precisely the letter that you now have.

We were just looking at article 7, and we cannot actually see how that would allow a balancing test. There is not an interpretation of balancing tests in the academic commentary, or in the ICRC or among many of our allies. We have written repeatedly to Business and Trade, as has our sister Committee, the IDC. No legal authority has been supplied to back up this interpretation, and we cannot see much support in international law for a balancing test either. It is certainly not provided for in the manual of the law of armed conflict, which is issued by the Ministry of Defence. Perhaps at this point, you could set out exactly what legal authority you are relying on for this balancing test that we cannot find anywhere else.

It is in front of me, Chair. Let us step through it piece by piece: “If the export is not prohibited under Article 6”, which I do not think the Committee is arguing, “each exporting State Party…shall…assess the potential that the conventional arms or items…would contribute to or undermine peace and security… If, after conducting this assessment and considering available mitigating measures,” we determine, “that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorise the export.” That seems to me relatively straightforward in the normal reading of it—is it going to contribute to or undermine peace and security? We have on one hand the potential involvement of it within the conflict in Gaza, where I think it is worth saying that the judge—the two judges, in fact—when considering it said, “The grave risk to life in the ongoing military operations in the Gaza Strip is not created by the F-35 carve-out, and would not be removed by suspension of the export from the UK of F-35 parts into the F-35 programme.” That seems to me a relevant consideration to the question of whether it would contribute to or undermine peace and security, as too is the element set out by the Defence Secretary, where he warns about bringing down the F-35 programme through ceasing provision to the global spares. I am sure Minister Pollard would be able to give more detail to it, but it feels pretty straightforward to me. The text that you have put in front of me does provide for that balancing, because the question is, would it contribute or undermine peace and security?

The arms trade treaty in its entirety is pretty clear. It is not presenting balancing tests; it is presenting absolutes, and the absolutes that it presents are that if there is a risk that exporting something contributes to a breach of international humanitarian law, the export should not be allowed.

Is it not quite clear, even from that text, that it is saying—both the text in itself and article 7 are clear—that this is not an absolute article, because it is saying “If the export is not prohibited under Article 6”? I read from that—

But it is also saying, if the item “could be used to…commit or facilitate a serious violation of international humanitarian law…the exporting State Party”—in other words, you—"shall not authorise the export.”

We undertake these assessments on the basis of all of the legal advice available to us. The legal advice that we have is that article 7 provides for a balancing test. We have set that out in skeleton arguments before the court. I can see that there is a question about whether you put more weight on (a) or (b), but given that it is clear that the absolute prohibitions are in article 6, which is explicit from article 7(1), it seems a reasonable reading of article 7 that this is an article that provides for more than just absolutes.

Our challenge is that we cannot find any other supporting authority that would support that line of argument, and indeed even the High Court judged it merely tenable. Perhaps we could make progress in this way: perhaps you could undertake to write to the Committee to set out the legal reasoning that supports your interpretation that you presented to us today. Would that be okay?

Yes; I do think it is in the skeleton argument, but I am happy to expand on it.

The RAF surveillance flights from RAF Akrotiri are solely for hostage rescue. They are designed to seek to identify the hostages that are being held, and then for a test to be applied to the information, if they are able to locate any, that says we will transfer that information only when we believe that the information being transferred will be used in accordance with IHL. It is not for any aspect other than hostage rescue. The flights are unarmed. They were previously carried out by shadow—

We do not give out details of operational flights, as standard practice.

I would need to check the total number, and I can come back to the Committee, if appropriate, to release that information. As standard practice, we do not often reveal the flights or the frequency of flights. As these are unarmed aircraft, many of them will squawk and can be picked up on open source. Even though the MOD may not reveal them, there may be alternative methods that the Committee can find an answer—

They are seeking to do that, yes.

Use of that would be a matter for the FCDO to assess. Routinely, the Ministry of Defence would not assess the operational use of military assets by partner nations, but the particular use and test of that would be an FCDO-led question.

I will just say a little bit about the likely use of F-35s. I think F-35 makes up 40 of the 300 combat aircraft available to the Israelis. What I am about to say is supposition rather than hard fact. It is not obvious—we are not notified about the use of F-35 by Israel. There is at least one occasion where we know that an F-35 aircraft was used in a strike, which was in July 2024.

In Gaza?

In Gaza—against Mohammed Deif. It is likely, we would suppose, that the F-35, as Israel’s only fifth-generation combat aircraft, is used much more often for other tasks, where the air defence—being able to conceal yourself from another state—is more likely to be required.

For example, Qatar. We would not think it is likely to be a very routine part of the strikes in Gaza that come across our screens so often.

Sorry, I am not sure I followed the end of the question.

Just to be clear, we have suspended a whole series of export licences for F-15s, Apache helicopters and drones. In the assessments we do, the military equipment being used that is most often associated with strikes of real concern is sometimes artillery, and often drones. Sometimes it will be an airstrike, but in some of the instances that will immediately come to mind, including the strikes on a hospital, it will not necessarily be combat aircraft that are involved. Where those combat aircraft are not F-35s, they have been suspended. The reason why we have not suspended the F-35 is not that we think, conceptually, it cannot be used in Gaza. As I say, in July 2024 it does appear to have been used in Gaza. It is because of the wider issues that we described in the debate about article 7.

I want to be clear, Mr Western, that it is very difficult for us to determine, given all the things that have been said so far, exactly what weaponry has been used and when in Gaza. There is the lack of international journalists—all the obvious reasons that would make those determinations difficult. I suspect that the F-35 is not used regularly. I think the Israelis believed the strike in July 2024 was against a particularly high-value target, senior in the leadership of Hamas. It may be that it has been used on other occasions for similar strikes. We would be surprised if it were being used with any great regularity, but it is difficult to give the Committee very precise answers on that, given the constraints on the information available.

It in theory could be used in the west bank. I am not aware of reporting of anything in the west bank recently that could be similar to the signature of an F-35 strike in the way that we have seen in other places, but I can double-check that point and come back to you.

Just to be absolutely clear, Mr Western, we have rejected and ceased licences where people have sought to export other equipment, for other aeroplanes, which we were fairly clear would and could—in all likelihood, would—be used in Gaza. The only difference about the F-35 is the way the whole system is constructed.

We do not routinely collect information on the activities of Israeli planes, so we do not have a lot of that information that I can share.

If we are looking at the activities of the hostage search flights, that is solely with the intention of locating hostages, so all the activities of those flights are based on hostage location—to assist in search and rescue for those hostages. That is their primary and only tasking. We do not ask them to look at additional activities. Their sole tasking is hostage rescue.

It would not be normal for me to—the flights are solely for hostage rescue. Their intention is to use the technologies and capabilities to look at that. As a result, we do not look beyond those activities, and it would be hard for me to give out further details due to operational security.

That is not the purpose of those flights—

The question is whether the data would be held in such a format that it would be able to identify that, because effectively—without going into too much detail—instead of looking at the landscape and geographies, it is trying to detect information that would pinpoint the location of individual hostages. In that respect, the tasking of the aircraft would be a different set of tasking from what you are suggesting might be available in the data.

It would not normally be a thing that we would look at in relation to this specifically because the tasking and our entire mission out of RAF Akrotiri is solely for hostage search and rescue. If there were to be alternative taskings based on a wider aspect, that would require a very different approach and may affect the permissions available to the planes to operate in the area.

It is difficult to go further in answering the question due to the fact that we do not routinely comment on intelligence matters. If there were additional taskings placed on those aircraft—beyond just hostage rescue—I think the ability of those aircraft to deliver those activities would be more constrained. As a result, it has been the clear policy of this Government that those aircraft are solely used for hostage rescue, and we do not provide or collect any other data beyond hostage rescue.

No, we are absolutely looking for the hostages. That is the sole purpose of those flights. That is the mission that they have been tasked with—to try to locate those hostages who continue to be held in Hamas captivity. That is their job and sole purpose. All the capabilities that the aircraft may possess are tasked with that in mind.

So you are not supplying what you find to Mr Falconer’s IHL compliance cell?

If the Foreign Office wanted to know about hostage-rescue data, a conversation would perhaps take place, but as the aircraft is solely focused on hostage rescue and using the capabilities for hostage rescue, that may not necessarily be of interest to other Government Departments—unless it is around hostage rescue, which is what the data is there for.

Has the Foreign Office ever asked the Ministry of Defence whether it can collect data to help it assess whether IHL breaches are unfolding?

I am not aware of that, but I would need to check the wider conversations.

Could you write to us on that?

I am happy coming back to you on that, but just to reinforce the point, the ability of the RAF aircraft or contracted aircraft to operate is entirely reliant on the permissions given by nations in the area. If the tasking of those aircraft were to go beyond hostage rescue, that would potentially change the calculations around some of those, which would defeat the purpose that you are arguing for in relation to that.

Going back to the F-35s used in Gaza, currently I feel the Government are being wilfully ignorant, because the Israeli Air Force itself has tweeted that, since October 2023, the service’s F-35s have flown more than 15,000 operational flight hours, taking part in thousands of sorties in all theatres. I do not understand how you can sit there and say the F-35s are not involved in Gaza when the Israeli Air Force is saying how many hours it has done.

With respect, Mr Maynard, in the year that I have been the Minister, Israel has flown aircraft in lots of different places. A sortie is not the same as a strike, and it is to be expected that, with 40 aircraft, there is quite a lot done. The question the Committee has rightly asked is what level of fidelity we have about F-35 flights into Gaza, and I have given you—

I go back to wilful ignorance. To that point, we have planes going over there and can see bombs being dropped. We can join those dots, and we are choosing not to.

Mr Maynard, I am not showing wilful ignorance. I am not ignoring evidence that is before me. We consider—

That is how it looks.

It may be how it looks, but I am telling the Committee that every piece of evidence that is before me and every piece of evidence that is before the Foreign Secretary we consider. There is a difference, as I am sure you know, between a drone flight, which happens at much lower height, and an F-35 flight. You cannot necessarily tell from a drone that there is an F-35 above you unless it strikes beneath you. I am here for all the questions of the Committee, but I would prefer not to be told that I am turning a blind eye to things when I am telling you that is not what I am doing.

Moving on to some of the arguments rehearsed by the Government in court, the Government’s position, as I understand it from the skeleton argument and the argument presented, was that there was no need to calibrate—your phrase—the risk of serious IHL violations, given the importance of the F-35 programme. The implication of that is that there is no IHL breach potentially so serious that it would result in a different decision on F-35 exports. Is that the case?

Sorry, the use of “calibrate”?

That was a phrase used in court, and the judge, in summarising the Government’s position, concluded that the Government was, in effect, arguing that it had no need to calibrate the different kinds of IHL breaches that it was concerned about, because no IHL breach was going to be, or could be, so serious that we would stop exporting parts for F-35s. Is that the case?

Chair, without prejudice to the arguments that we made in court, because it is quite difficult for me to zone in on exactly which part of the skeleton argument or the judgment you are referring to—

Paragraph 187.

Of the judgment?

For the benefit of the Committee, paragraph 187 says: “It is obvious that the Secretary of State took the view that the risks of suspension of exports into the F-35 programme dramatically outweighed the risks arising from some F-35 components exported from the UK being supplied indirectly to Israel…we accept that it was not irrational for the Secretary of State to take the view that a calibration exercise would not have been capable of so dramatically increasing the weight the Secretary of State would have given to the risks of export as to override the consequences of suspension.” The implication of that is that there is no IHL breach so serious that the Government would decide, “Enough is enough—we’re stopping F-35 exports tomorrow.”

That is not quite what I took from that section of the judgment. I am careful to summarise judges, but my reading of that section was that the judges, having satisfied themselves on the factual position as it currently is—I quoted paragraph 164, where they say, “The grave risk to life in the ongoing military operations…is not created by the F-35 Carve Out, and would not be removed by suspension”. I took paragraph 187 in that context to mean that, with the grave risks to the F-35 programme presented in closed, and in the Defence Secretary’s argument, weighed against the fact that removing the carve-out would not remove the “grave risk to life in the ongoing military operations in the Gaza Strip”, the calibration of those two sets of facts meant that the Secretary of State was reasonable not to overly labour that question on calibration because it was so obvious. That is not to say, Chair, that we do not make these assessments regularly and with full knowledge of the very serious tests that fall on us from international law, from a whole range of treaties and instruments, including the genocide convention. Clearly, if we reached different assessments, then I think questions like this would feel very different indeed, but I read paragraph 187 as recognising that ending the carve-out is not going to end the violence in Gaza, and that there are very significant implications for Britain’s national security and that of our allies; a calibration was not required beyond the one that was provided.

The only other point I would make is that the Court was not deciding whether the decision was right or wrong; it was deciding whether the decision made by Government was made lawfully. It decided that our processes were thorough and lawful.

I think it really concluded that it could not judge adherence to an international treaty, and that it was actually for Parliament to hold Ministers to account. I think that was the tenor of the judgment.

It quoted Lord Hoffmann—

Sir Chris, let me come back to the substantive point. Mr Falconer, the reassurance that you are giving to the Committee is that Israel does not have a carte blanche to use F-35s as it so pleases.

The reassurance that I am giving the Committee is that we will review the whole spectrum of IHL, including the genocide convention, on a regular basis. The Foreign Secretary takes that responsibility very seriously, and the question of what decisions might flow from those assessments clearly remains open.

You have admitted to the Committee that there is, in effect, a line and that Israel has not yet crossed the line. So even though export of F-35 parts may constitute a serious breach, or a risk of a serious breach, of international humanitarian law, there could be a point at which, if Israel crossed that line, a decision would be taken that F-35 exports must cease.

I am reluctant to agree that there is a red line in the way that you characterise. Clearly a finding under the genocide convention of a serious risk is a very solemn finding indeed. The questions that would then flow for the Government were set out in Lord Sumption’s evidence. Are there things that can reasonably be done by the British Government in order to try to prevent that? Those would be the questions that would flow to us under those circumstances. The reason I am slightly reluctant to accept that those are the considerations of a future time, and these are the considerations of today, is because that would undermine the solemnness of the decisions that we took in September and have taken since. There is no ambiguity in my mind about how grave circumstances are in Gaza. I am doing everything that I can in order to try to bring about the objectives of this Government, which are an immediate ceasefire, aid getting in, hostages being released, no future for Hamas, and a two-state solution. I would not want to give the Committee the impression that I am, or anyone else in the Government is, waiting for some further thing to be triggered before we really seriously get busy. We are working as hard as we can. Of course, if we make a further assessment of risk on the most serious of crimes, clearly we would review everything very carefully at that point, but I would not want to give the impression that we have not started yet.

We are trying to understand how the Government operate the strategic export licensing criteria, its obligations under the arms trade treaty and its obligations under the genocide convention. You have assured us that the implication of the obligations under all three of those systems does not mean that Israel has a carte blanche to use F-35s in whatever way it likes.

More importantly, it does not have a carte blanche, full stop.

Okay. We have established there is no carte blanche. In that case, there must be a line such that, if Israel crossed it, the Government would take a decision that F-35 exports must cease, no matter the impact on other—

On the question of international law, we have already made a solemn judgment about the risk of breaches of international humanitarian law. There are not that many places to go beyond that. One of them is obviously a serious risk of genocide under the genocide convention, in which case we would turn ourselves to the obligations that fall on us under those circumstances. I am sure, given the seriousness of that, everything would be on the table. But it is not that we wait in relation to a variety of things until you have made that assessment of serious risk. You would turn your mind to the question of the genocide convention. It is clear what the judges think about the F-35s’ impact on the conflict in Gaza from paragraph 164. They are clear that if we were to stop the carve-out, it would not stop the violence in Gaza. I consider that my primary job as the Minister for the Middle East is to try to stop the violence in Gaza. It is clearly relevant that, having gone through all of that evidence, the judgment of the two judges is that stopping the suspension would not make a difference to whether or not the violence in Gaza continues.

But the implication of what you have just said is that, if the Government came to a conclusion that a duty to prevent genocide had been triggered, then there would be a different kind of behaviour from the Government from what we have today, which is a judgment about a risk of breach of the arms trade treaty that has allowed you to continue the exports. You are saying that, if there were a different judgment under the genocide convention, different obligations would flow for the Government and presumably exports of F-35 parts would cease—so the treaties are not equal and your obligations under the two treaties are not being equally honoured.

We are honouring all of our obligations to the treaties. In the hypothetical situation, into which I am reluctant to go too deeply, in which a serious risk had been triggered, there is language in both article 6 and other treaties to which we would need to turn our minds. For reasons that I am sure you understand, Chair, I am reluctant to get drawn too much into a hypothetical situation that we are not yet in. All I would say is that clearly this is the crime of crimes, and the British Government would take it very seriously were we in that situation where we had made that assessment.

To go back to the judgment of the Court, on ground 11 it found that the Government had “reasonably concluded that there was no realistic possibility of persuading all other partner nations that F-35 exports to Israel should be suspended” and that the UK faced a “blunt choice” to suspend all exports and accept “the defence and diplomatic consequences which would ensue” or choose to exercise the carve-out. I cannot think of a set of circumstances in which that blunt choice would change.

Even if the Government had concluded that its duty to prevent genocide had been triggered?

What Minister Falconer is absolutely right about, with the proviso that we have to be very careful about hypothetical sets of circumstances, is that we will always have to keep under review every single element of our engagement in this space, just as, previously, we decided to suspend our negotiations towards a free trade agreement with Israel.

Given the daily descent into barbarism that we are now witnessing, why is the assessment that you are making on breaches of IHL only going up to the end of June? Why is it so slow?

I would differentiate between two things. One is that for the purposes of this exercise, which requires real precision given that it is a quasi-judicial process, it does take some time to go through the full suite of what we know and pull it into a proper assessment for consideration. That does not mean that the British Government waits until those assessments have been done. I think the House has heard me comment on events in July, August and so on in the Chamber. The fact that it takes a little while is a shame, but that is just—

Do you not think there is a case for speeding it up?

Foreign Office Ministers seek to respond as quickly as we can to the events of the day, whether they are the strike in Doha this week or the IPC findings of two weeks ago. In terms of getting the assessments right, a lot of very important consequences flow from them, so six to eight weeks feels about right, given the considerable amount of Foreign Office resource that is required to try to make sure that we get through all the evidence, which is voluminous, to make assessments properly.

Given the dynamism of the situation and, indeed, the speed of descent of what is going on in Gaza, do you not think that eight-week period can be compressed?

Do I think it is possible for the eight weeks to be compressed? It may be theoretically possible but, regrettably, the descent has been happening throughout my period as the Minister. It may be that you could compress in a particular period, but things have got worse over quite a long time, and the Foreign Office needs to be able to maintain a consistency and a depth of assessment across all the assessments we do.

Sir Chris, do you think there is a sensible, relatively simple middle way through to solving the F-35 carve-out, if we had enough gumption to stand up to the US? It could look something like this. F-35 parts continue to be sold to Israel for defensive purposes only, and not for use in Gaza or other questionable theatres. All parts are tracked so that we can see where those parts are being used, and that is conditional on our continued sale of parts. I get that we are not contractually bound with Pratt & Whitney, but this is a conversation. We have 60,000 people dead. We need to find a way. This false argument that the only option is a complete stop of all F-35 parts, and that would compromise the UK, seems to be a real bogus red herring. What about that simple way of trying to find a consensual way through, with the US and with Israel, to keep allowing Israel to defend itself, but stop it using the F-35s in Gaza and elsewhere?

It is an intriguing idea, and the kind of idea that, of course, has occurred to lots of people in the Department before me—and, for that matter, to me as well. There are some significant problems with it. First, I am informed that tracking that is not quite as simple as everybody would suggest. Secondly, you referred to the concept of “consensual”; a consensus, in this circumstance, means all the nation states together. Minister Pollard can speak more to the way that the F-35 is constructed, and the supply chain and all the rest of it, but most of it is put together in three different countries.

I am just talking about the UK, US and Israel; I am not talking about the rest. We could come to our own agreement, saying that the UK Government will not allow these parts to be exported—our parts, made in the UK—never mind what goes on with other countries.

Indeed, but you have to achieve that consensus, and that is not as easy as anybody would like to suppose—which was one of the things talked about in the court judgment.

That comes down to determination, doesn’t it?

But it is not about gumption, I have to say.

Really?

No; people have tried quite hard. The way that the F-35s are constructed, and the way the contract is constructed, does not make that easy. The diplomatic arrangements are obviously for the Foreign Office, but I don’t know whether Mr Pollard wants to answer any specifics about the tracking issue.

It is worth understanding how the Joint Strike Fighter—originally the F-35—programme works on a global basis. Of the eight original partner nations, of which the UK is one and the US another, agreements on how the F-35 global support system operates have to be taken by consensus, which means that all nations in that original eight have to agree to that position. It is our assessment, currently, that we would not get consensus on changes to the process. The way the system works is that UK manufacturers making bits of the F-35—we make approximately 15% of every F-35 on the planet, and there is no alternative sourcing; it is only us who source into those programmes—are contracted from the US Government via one of the two primes—Pratt & Whitney for the engines, or Lockheed Martin for the airframes. We make the bits, or UK manufacturers make the bits, whatever those may be; that could be the ejector seat or the rear fuselage. Those are then exported into the global spares pool, and then sent either to a fulfilment centre to be sent out to an F-35 user—which could be one of the original eight or could be a foreign military sale—or to one of the three production lines in the US, Italy or Japan. As soon as it leaves, we do not track it.

Luke, those are the mechanics, and we get all that, but there are 60,000 people dead. The contracts are very important—I get that—but we do have some leverage, which is that we can stop allowing those parts to be exported if we choose, as a country, because we have these things called strategic export licence criteria—

But our judgment is that—

Let me finish, please. We do have that lever, and we are choosing not to use it because of the contractual obligations. I think many of us on the Committee would say, “Is there not a case here—a very strong case—to be saying, ‘That is not allowed any more; we will do that’ and to play hardball to try to find a sensible, consensual solution?” We do not have to hit the nuclear option here, but we can insist, and can work with those other eight partners to find a way through. That is something that I think we should be aiming to do.

We will hear from Mr Pollard first, then Mr Faulkner second.

What I would say in response to that is that we continue to have conversations with the partner nations—the original eight—in relation to this. Our assessment remains that there is not the possibility of consensus there. So I understand where you are coming from, but it is not our assessment that that is possible. It is also worth understanding that, if we were to not export these parts into the global programme, the entire global programme would be at risk—

Which gives us some leverage.

That goes for every F-35 on the planet, which also then has a subsequent risk for peace and security. For instance, it was an F-35 from the Netherlands that shot down one of the Russian drones over Poland, so that is an immediate use of F-35s around the world in supporting our national security requirements and those of our allies, and that change would have an immediate effect on that. I think all our partner nations are aware of this debate—because they are having it in their own nations too—about what is possible, but it remains our position that we do not believe there is the ability to reach a consensus within those original eight to change that. Notwithstanding that, I can understand the logic of the argument that has been made—believe me, that is not lost on us—but we do not believe there is an opportunity to adjust that at this time.

Let me just test this. Page 2 of the advice that we have just published, which you supplied to the Secretary of State for Business and Trade, says, “Senior MOD officials have engaged with F-35 Joint Program Office…to understand what options might be available to mitigate the impact of a UK licensing suspension”. Sadly, the next paragraph is redacted and summarised with the words, “There are significant obstacles to any changes to the present structure.” Given the constraints on us in open session today, could you give us a flavour of what those obstacles are?

It would not be appropriate for me to reveal confidential conversations between the partner nations. The gisting of the element that was redacted was correct. It remains our assessment that we would be unable to achieve consensus on alterations to the way that the global F-35 programme works.

We have spent time with lots of supply chain experts and former senior leaders in the Royal Air Force, and we are still perplexed at why it is impossible to, in effect, ground F-35s in Israel while preserving the F-35 fleet elsewhere. Given the constraints on you, in terms of the evidence you can present today, could you look again at how you could explain to us in Parliament that it is impossible to ground F-35 planes in Israel without grounding the fleet around the world?

I am happy to come back to the Committee, but it would be the same as the evidence presented in the Secretary of State’s letter—

Well, there is not very much evidence presented in that letter, to be fair.

The F-35 system is a global system. It does not operate different systems for different nations—it is a single global system, in which circumstances, any changes to how the F-35 procurement system on a global basis works requires consensus, and we do not believe that we can achieve consensus.

But Minister Falconer has just told us that Israel does not have a carte blanche, that a line exists, and that when Israel crosses that line there will have to be consequences. At some point, this bridge will have to be crossed. It could be that you are telling us that the bridge requires consensus among the partners, but we just need to understand how the UK withdraws from this programme if, all of a sudden, we recognise that we now have a duty to prevent genocide.

On the characterisation of what I said earlier, clearly Israel does not have a carte blanche under international humanitarian law—

In which case, there must be a line.

We have taken a whole series of steps so far. On the question of whether, should some further, higher position of misery be reached where we did find a serious risk of genocide, we would clearly want to review all our international legal obligations, I was not saying that necessarily F-35 would be one where there would be a change. It is clearly relevant that the judges who have looked at this have said that it would not make a difference to what happens in Gaza. That is not to say—

To be clear, you are not ruling out an F-35 change.

I am not ruling out any change if we make that determination.

Chair, I can answer your question about withdrawing from the F-35 programme. It is possible for any nation to withdraw from the F-35 programme, but when a nation withdraws from the F-35 programme, they are unable to use any of their F-35s again. That means that our carriers would no longer be used, our F-35Bs in the RAF could not be used, and we would not be buying the F-35A to participate in NATO’s nuclear mission. That would be the impact on the state-level activities: we would not be able to use F-35s. As the contracts that exist with UK manufacturers are not with the UK Government—they are with the US Government, via the primes—they would continue to be in place. It is worth understanding that, in many cases, we have the second-highest level of content in an F-35, outside the US, because of the quality and the ingenuity of the IP in those platforms. It is not F-35 IP in the ejector seat that we make in the UK, for instance; it is the IP of the UK firm that makes the ejector seat. At such a point, if there is an export restriction on those, the replacement procurement to find alternatives for those would, in our estimate, take a number of years, which would then have an immediate impact on the ability of the F-35 production line and the global spares pool to operate in the way it currently does. That would be a quite considerable impact. There is theoretically a route whereby you could do these things, but the impact on our own national security and that of our immediate allies—bear in mind that 12 of the 30 or so NATO members operate F-35, and so do allies further afield—would be significant, and would therefore have a significant impact on UK-US relations, in particular, and our ability as a nation to make the case for procuring other platforms with allies, bearing in mind that F-35 in the UK supports 20,000 jobs. That is not to say that we are not alive to the appalling situation that we see in Gaza, but I hope that that explains the approach as to how the F-35 global programme works. But there are options—

Mr Pollard, no one in Parliament can understand why you cannot ground F-35s in Israel while keeping the rest of the global fleet flying, so laying out that rationale for Parliament would be a great service to colleagues.

I will take that away.

On that point, as I understand it the partners are the US, the UK, Italy, the Netherlands, Australia, Canada and Norway. You mentioned that article 7.1 says “would contribute to or undermine peace and security”; I think I can broadly say that we get the importance of the F-35. Looking at the list of partners, I can imagine that many of them, including the Netherlands, Australia, Canada, Norway and possibly Italy, are of similar mind to us—the big bugbear in that is probably the United States. But if all the partners, or at least a large majority of the partners, are saying the same thing to the United States, would that not perhaps affect them? At least, if Israel knows that that discussion is happening—we are talking diplomacy here, apart from anything else—it might just make damn sure it does not use the F-35s in ways that the international community is going to object to.

I entirely understand the argument that you are making, and it is one that I am struck with as well. You will appreciate that I will not be able to go into the confidential conversations that we have as part of that international organisation. We maintain a regular dialogue with all the eight partner nations—seven plus ourselves—as part of the F-35 partner nations. It is something that all partners are aware of in terms of this debate, but it remains our assessment that we cannot reach consensus currently.

It might be useful to hear from you on that as well, Mr Falconer, because you are FCDO—you are the diplomat in the room.

I am. Going back to Mr Maynard’s suggestion about trying to reach consensus with, as I think you suggested, the US and Israel, there is clearly a variety of views among those eight about the situation in Gaza and the wider middle east. There has been no secret that the American Government and the British Government take different approaches to some of these questions. In conceiving whether, as Mr Maynard suggests, you could reach agreement with the US Government on the components that we supply—which, to be clear, are parts of the tail of the aeroplane, some electronics and ejector seats—it is worth refreshing ourselves on what the US Government are currently directly providing, not selling, to the US Government—

To the Israeli Government.

To the Israeli Government. It includes more than 20,000 unguided bombs, 25 F-35s in total, hundreds of drones, a range of F-15s and Hellfire missiles. That is clearly not the posture that we have taken in relation to Gaza. Mr Maynard may be a much more effective diplomat than me and my colleagues, but as the judge found in the Al-Haq case, it is clearly not reasonable to think that agreement can be reached when, as Minister Pollard sets out, consensus is required and the US is in a very different place. I will not comment on the other eight, but what is publicly available about US supplies to Israel makes pretty clear the different approach that it takes to these questions.

Could I go back to the point that I mentioned earlier? There may be much more common ground with those other partners than the US over this, and collectively you may have more impact in affecting the United States. My question is, will you look at that question and engage in at least a conversation with the other partners? Clearly we are getting to a point where Israel needs to be reined in massively.

In relation to the United States of America’s position towards what is going on in Gaza and the wider middle east, we have said pretty clearly that we discuss this matter directly with the US. There is, of course, a diplomatic judgment about whether or not we would best seek to make progress on these issues with the US bilaterally—we have a close relationship with the US—or as part of the F-35 programme. As you would expect, we take diplomatic judgments on that all the time.

Chair, Mr Maynard suggested something that I did not hear properly. I think he suggested that one of the things that we might look at is whether we could only allow Israel to have F-35s for defensive operations; I think that was what he was saying. If so, my anxiety is that that is not the judgment we are making. The judgment that we are trying to make is on the deployment. Once something has gone to Israel, it is very difficult to make a differentiation between offensive and defensive operations.

I am going to move us on because I think we have covered that. Sarah Edwards.

Minister Falconer, I want to pick up on some of what we have been talking about. We have heard a lot about technical language—quite rightly so, obviously—and the interpretation and article 7, but globally people are watching with horror. Our constituents are watching with horror and what they want to know is this: what power do the Government have and how do they deploy it, and what is available to them to try to help to bring an end to what is going on? We have talked a bit about some of the things that have been used and implemented. Our constituents want to know what pressure can be put on. How are we doing that? Are we doing everything? Some of what we have heard in this session has related to licences at the moment. For example, take the flight training equipment. A decision currently taken may be, “Well, it is not going to be used at the moment.” We could get into that again, but we have dealt with it. I think what people want to know is this: why are we not putting everything available to us on the table? Why are we not making it difficult? Should they be able to use training equipment or any other equipment? Why have we made a decision not to go as far as we can? It feels as though the evidence and the weight of that for anybody watching, regardless of what the criteria might be—actually, people do not necessarily want to hear too much about the technical argument now; they want the moral argument to succeed. I wondered if you could speak to why we have still not made some of those decisions. How much more power do we have, and why have not we deployed it?

It is absolutely obvious that I came in, as my colleagues did and as the Foreign Secretary at the time did, with the policy objective of an immediate ceasefire. Other than for one brief period, we have not achieved that objective. We came in wanting the hostages out, humanitarian aid in and Hamas removed. All those things remain outstanding. I can assure the Committee that it is not from a lack of effort on the part of HMG that we have not made the progress that we want to see. We have announced to Parliament a whole range of measures that we hoped would lead to change, whether it is sanctions on Mr Smotrich and Mr Ben-Gvir, the steps we took in relation to the International Criminal Court, three waves of sanctions, restoring funding to UNWRA—demonstrably, all those things have made very little impact on what I think the Chair described as a descent in Gaza into ever greater horror. We now have famine in Gaza; I think that is only the fifth IPC determination in its history of famine. I cannot pretend to the Committee that our efforts are working; were they, we would not be in this situation. I find the discussion about arms exports in some ways to be frustrating, because it ends up in, as you say, quite a technical and detailed discussion. Let me try to set out, from a Foreign Office perspective, what we are trying to do in relation to these questions in Israel. Bombs, bullets—anything that can be used in Gaza, we have sought to suspend. There are things whose purposes we support—for example, the Iron Dome: we do not wish to see missiles land in Tel Aviv; we do not want to see Iran being able to threaten Israel. Where there are arms export licences that support our policy, they continue. Where they do not in relation to Gaza—let me just put an asterisk there—they do not continue. We have discussed the F-35 programme in great detail, and it is an important programme, but we have, as I said, suspended F-15s, F-16s and Apache attack helicopters—the equipment in the assessments I see is used much more regularly to cause harm in Gaza. I understand why many of my constituents—and I am sure yours in Tamworth—ask questions. Surely, we can be doing more. If only there were a lever in the Foreign Office that I, the Foreign Secretary or somebody else could pull to achieve the policy objectives we set out when we came in, which still remain unachieved. We are doing everything that we can. I understand why the Committee focuses in the way that it does—whether it is on trainer aircraft, F-35s or body armour used by NGOs—but, honestly, my assessment is that those things are very unlikely to move the Israeli Government. If they were likely to, when we suspended more arms licences in one period than had been done in the whole nine years previously, we would have seen a change in position from the Israelis, and we did not. We will be coming back—to the whole House, I am sure—on questions of recognition shortly, and we have set out the criteria and timing clearly. I am sure we will be coming back on a whole range of other important questions. As I seek to assure my constituents—and I would seek to assure Committee members’ constituents—we are doing everything that we can. There is not a day in which we are not focused on questions in Gaza, whether that is medically evacuating children, trying to get aid in or trying to ensure that we have the broadest possible diplomatic alliance for the things we do. This is a preoccupying concern for me, as I know it is for the Foreign Secretary.

Thank you for that answer. Thinking about our partners and perhaps the pressure that we, you and others are trying to bring about: what do our partners feel about the interpretation that we are making of some of the licences? They have taken a different view and may have slightly different process. What is their view? Take Spain, for example: the Spanish Prime Minister has already come out and made a statement about his views around genocide. How are those conversations implementing the direction of travel that the Departments are now taking in relation to what we do next? This relates to the powerlessness that constituents feel when they are rightly concerned—and you have also outlined how concerned you are. From that perspective of pulling together our allies and partners, what is next?

That is a very important question. As the judges note, there are eight other partners—as Minister Pollard sets out—in the F-35 programme, and none of them has considered that their continued input into the programme is a breach of their international legal obligations. They are all under the same obligations—both the arms trade treaty, and other international legislation—as we are. In terms of how we try to ensure diplomatically that there is the broadest possible coalition for what we do, we have sought, both over the summer and before that, to try to use our leadership role to persuade, for example, 27 other countries to make joint statements about humanitarian aid. We announced the sanctions on Mr Smotrich and Mr Ben-Gvir in company with others, including Australia, Canada and I think New Zealand. We are trying to play a leadership role. I recognise that when we are going through treaty, law and licences in the way we are today, we can give the appearance of being defensive. That is not at all our position; we are trying proactively to lead. I will be travelling to New York with the Foreign Secretary for high-level week at the end of this week, and I expect that we will be seeking to continue to demonstrate that leadership on the international stage there, just as we did in July.

Mr Mathew?

That is pretty much it from me.

I turn to the question that now lies ahead of you at the UN General Assembly. Has an assessment now been made that we will recognise the state of Palestine?

Chair, I am sure you know all this, but the previous Foreign Secretary set out in a statement in July the tests against which an assessment will be made. The Foreign Secretary will provide advice to the Prime Minister. It is the Prime Minister who makes determinations about recognition. The Foreign Secretary is considering that advice at the moment. The advice has not yet gone to the Prime Minister, but I would expect it to very shortly, given the timing of high-level week.

The advice is likely to go to the Prime Minister this week?

I would assume so.

If the decision is taken to recognise the state of Palestine, how will it change the way in which we control the export of weapons to Israel?

Again, Chair, I am rather reluctant to go into the hypotheticals, but there is clearly a difference in international humanitarian law between the status of conflict involving two states and a conflict within one state, so we will obviously be turning our minds to those questions. On our overall obligations under the arms trade treaty, I do not think there would be an enormous change because the tests remain pretty consistent regardless of the status you put on the territory in question. I am sure there will be some legal considerations if we are to make that determination, but it is probably too early to be able to elucidate them to you all as clearly as you would like.

If we made that determination, would it not require us to examine the use of weapons in the west bank much more closely?

I do not want to prejudge what the Prime Minister might decide. I hope I do not seem evasive but, if we make that decision, I recognise that Parliament will rightly be anxious to understand the legal implications of recognising a Palestinian state. Given how close it is, I would prefer to try to address those questions after we have made the determination, if that is okay.

I understand that the prohibition on arms exports at the moment relates to arms that may be used in Gaza. Am I right in saying that there are licences for weapons that could still be used in the west bank?

The test is what is happening in Gaza, but as you have seen from the discussion this afternoon, we are mostly looking at the use to which they might be put. It is difficult, for the reasons we discussed with Mr Mathew, to determine precisely which weapon systems are used in Gaza, so the prohibitions—or the suspensions—of arms export licences that were focused on Gaza would also apply to the west bank because we have no geo-tracking on how these weapons are used. Israel is engaged in a number of places; we would consider the suspension of licences justified by IHL assessments of conduct in Gaza to also affect weapons in use in the west bank, East Jerusalem, southern Syria or anywhere in Lebanon.

The question we asked at the top of the meeting was whether any of the 55 extant licences where the Government of Israel are the end user were being used in Gaza. Sir Chris said that they were not. Can you provide the same reassurance that the currently extant licences where the Government of Israel are the end user are not being used in the west bank?

I can. I will double-check the point and write to you, but my understanding has always been that, looking at the licences themselves, air defence elements are not in use in the west bank. I will double-check the point and return to you. It is my understanding that the prohibitions covering Gaza would also cover the west bank and other places where similar such activity might be taking place.

I was going to say all that, but it should probably be me who is writing to you.

Maybe it could be a joint letter. Thank you very much. If there are no other questions from the Committee—

Sorry, can I add just one thing? Following whatever decision is made by everybody, if there are direct implications for us, I am very happy to write to the Committee and engage with you directly.

Thank you; I appreciate that. I think we have established that there is a line constraining Israeli conduct, so there may well be further sanctions and controls on weapons exports if there is an assessment that there is a potential risk of genocide and that our duties to prevent genocide are triggered. We have established that there are 55 licences still extant where the Government of Israel are the end user, and you have undertaken to write to us with the detail that you can supply about what those licences actually relate to. Mr Falconer, you have undertaken to share with us in the next IHL assessment a little bit more about your reasoning as to why the Government have arrived at a decision that there is not a risk of genocide. You have also offered to share some of the legal logic that we lack about why you think a balancing test is possible within the constraints of article 7 of the arms trade treaty. Mr Pollard, we are grateful for your reassurance that you will supply, to the extent that you can, an argument as to why we cannot ground F-35s in Israel while keeping the rest of the global fleet flying. This Committee, like you, Ministers, is looking at what is going on in Gaza with utter horror. We wish the hostages could come home soon, but really the conduct of Mr Netanyahu’s Government is simply outrageous, and we should not be complicit in it. Thank you very much indeed for providing us with evidence today and for the background evidence that you supplied to us last week. That concludes this hearing.