Welcome to today’s session of the Business and Trade Committee, scrutinising licences for arms exports to Israel. I am very grateful to the Ministers for joining us this afternoon, and you have brought with you some officials—thank you very much to Kate Joseph, Stephen Lillie and Stuart Mills. We are also very grateful for the presence today of our sister Committees. From the Foreign Affairs Committee, the International Development Committee and the Defence Committee, we have with us Mr Dhesi, Mr Foord, and Ms Harding. The matter before us could not be more grave. Our time today is very short, and there is a debate in the House about this matter on Monday. It is, therefore, the duty of this Committee to make sure that the House goes into that debate as well informed as possible. To everybody on the Committee, I would say that what we need today are short, forensic questions, and what we need from Ministers are concise and succinct answers. The questions that we explore today are before the courts. Mr Speaker has therefore granted our hearing today a sub judice waiver so that we are free to roam where Committee members would like to go. As in all things, Ministers are bound by the ministerial code and its injunctions to be as open as possible with Parliament. They must also be mindful of the ruling of 10 July 2017, in paragraph 33 of the judicial review ruling, that political accountability and responsibility to parliamentary scrutiny are the essential components in the legality of our framework for arms export licensing. Everybody on this Committee was appalled by the events of 7 October last year. We deplore the kidnap and keeping of hostages, and the wanton destruction and loss of life that have ensued. Minister Alexander, perhaps I could start with you. Thank you very much indeed for supplying the Committee at 1.12 pm today with an updated set of statistics about arms export licences. I am conscious that the information that your Department has provided to the courts in the outline position statement of 12 November 2024, at paragraph 4, is probably more detailed than the information that you have supplied to the House of Commons. I would be very grateful if we could write to you after this meeting just to seek more details about the nature of the arms licences that have been suspended, and those that are still open. Is there anything you want to add, just very briefly at this stage, about which licences have been suspended and the nature of the licences that are still open?

First, I applaud and recognise the sentiments you describe in terms of the importance of parliamentary scrutiny generally ahead of the debate on Monday, and the important work of this Committee in that regard. What we inherited on coming to office on 4 July was an imperfect system of data release, candidly, within the Department for Business and Trade. I know that that was a matter of some consternation in a previous session of this Committee. In the light of that, I was determined to ensure that we were able to provide the Committee today with the most up-to-date figures in relation to figures that I now understand are in the public domain, from 7 October—the horrendous events that you describe—until last Friday, four days ago. That being said, it is a matter of regret to me that we were able to get those figures to you only at the time that you describe. None the less, I wanted to prioritise the Israeli export control licensing data to make sure that the Committee was sighted on it in the course of today. In terms of those licences that have been suspended, I would perhaps ask that Kate Joseph, our Director General who leads on this area of work, speaks to the detail of the release. I would be very happy to offer any views once she has gone through the table you have in front of you.

Let me read the information that you supplied to the court. It says: “The red licences included components for combat aircraft, military transport aircraft, military helicopters, targeting equipment, combat naval vessels, and unmanned aerial vehicles and technology for military goods.” Even that level of detail is not in any release that has been supplied to Parliament. Just because there is so much to get through, I am going to write to you and Kate in order to get that more detailed information, if you are content with that.

Ministers Doughty and Alexander, are you still using the decision-making framework set out by the then Foreign Secretary in April 2024. when making licensing decisions under criterion 2c?

Yes, 2c continues to be the basis on which decisions are taken by—in the case of the Department for Business and Trade—the Secretary of State for Business and Trade.

On 2 September, the Foreign Secretary informed the House very clearly that the Government have rigorously followed every stage of the process that the previous Conservative Government established. On 2 September, we also published a summary of the IHL assessment process to allow for greater transparency on our decision making. We set out very clearly the facts that are part of that process, the way it works, and obviously the conclusions that were then reached as a result.

Those frameworks are based on the statement made by then Minister Trevelyan on 8 December 2021. That framework is still the framework that is in place today—is that correct?

Yes. The approach to applying criterion 2c draws on the framework upheld in previous litigation, and that gathers information from a wide range of sources. That includes information reporting from NGOs on the ground, reports from other FCDO desks, reports from the media, statements from the UN, NGOs and so on, and reporting from HMG engagement with Israeli counterparts. It also draws on a lot of military incidents. There are a lot of factors that inform that process, and it is followed rigorously and properly.

There has not been any innovation, refinement or development of that framework, last declared by Lord Cameron, since the new Government have taken office?

I obviously cannot comment on the process and ways that the previous Government conducted it, and I am not privy to the document.

It was set out before the House on 24 April. It sounds very similar to the framework you have just enunciated. I just want to check there is not anything else that you have added without us knowing.

No.

Criterion 2c states that the Government will not issue export licences if there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law. That is the basis on which the judgments have been reached.

And we followed the criteria exactly as set out in the SELC criteria.

We are looking at four streams of evidence and we are assessing capability, commitment and compliance.

All that is balanced.

It has not had any innovations, development or refinement since you have come to take office? Perfect.

Just to confirm, the second stream is analysis of statements made by NGOs, international bodies and partner countries relating to Israel’s adherence to IHL. Does that include the ICC and ICJ rulings?

We consider the important role of the ICC and the ICJ as we would any other evidence. The ICJ has not come to a definitive judgment on this. Obviously, it would inform any future processes. We weigh that in the same way that we do all the other evidence that is there, and we take their roles very, very seriously.

So they are included.

And the date of the last IHL SELC report?

Assessment 9 is currently underway. It is about to report, and be considered in due course by Ministers, and then obviously the findings of that will be taken in due course. There has obviously been assessment 7, which was the one that triggered the 2 September suspension decision. That concluded between 25 April and 19 June, and the licensing submissions went up on 24 July. Assessment 8 was between 20 June and 31 July 2024, and the licensing submissions were on 2 October. As I said, assessment 9 is currently under way.

Okay, so when was the end date for assessment 8?

The dates I have here are that it took place between 20 June and 31 July, and the licensing submissions were on 2 October.

Mr Doughty, can you provide us with information about the legal basis for the suspensions, and what specific evidence and analysis were used to support the Secretary of State’s view that breaches of international humanitarian law may have occurred?

The Export Control Act 2002, which you will be familiar with, requires Ministers to give guidance about the general principles to be followed when exercising licensing powers. The current guidance, of course, is the SEL criteria, which were announced in 2001. Obviously, criterion 2c, which we have spoken about already, states, “The Government will not grant a licence if there is a clear risk that items might be used to commit or facilitate a serious violation of international humanitarian law.” On the basis of an IHL assessment, the Foreign Secretary concluded that: “Concerns about Israel’s compliance and commitment in areas of humanitarian relief and treatment of detainees give cause for concern about its attitude and approach to the conduct of hostilities,” and that informed the conclusion that the clear risk threshold was satisfied. We then obviously advised the Secretary of State for Business and Trade that the relevant licences should be suspended, and that was what he announced on 2 September. That is the basis, that is the process, and we obviously gave a summary of that process at the time.

Can you set out the evidence and reasoning that led to that—any of the information that you became aware of, because obviously that position has moved from where it was before? Is there new information that you have taken on board? Is it a new evaluation process that you are using, or is it about looking further over time and looking at a pattern, for example?

Well, we consider a whole series of issues, as I set out earlier. As I said, particularly the review highlighted concerns and breaches in the areas of humanitarian access and the treatment of detainees—these were the two specific areas. That obviously led to a question about wider commitment to acting in line with international humanitarian law, and that was the decision.

Was that information available to the prior assessments and it was just reassessed, or is it new evidence that you looked at?

It was the information that we had available, Chair. Obviously, I do not have access to information that previous Governments had. We took into account events that took place since we came into office.

But you would not have disregarded the evidence that was available in IHL 7?

Well, we get access to a lot of information, but I do not have the exact details of all the decisions they made. Maybe Stephen could speak on the previous information.

In many ways each IHL assessment builds on the previous one, so it takes account of what has been in the previous ones and adds on the additional information. When the new Government took office, as officials we were providing an IHL assessment that took account of the broad picture, but then specifically provided comment on events that had taken place since the previous IHL assessment.

In the outline argument from the Business and Trade Secretary on 12 November, it says that a threshold of clear risk had been passed. I guess what we are trying to understand is whether that was a different evaluation of information that was already available, or if it was new evidence that had accumulated—and, if so, what was that evidence. For example, if that ran until the end of July, you would have had the benefit of the ICJ advisory note issued on 19 July. Again, was it new information that tipped into clear risk, or was it a different evaluation of old information?

In many ways, it is both, Chair. It is a fully up-to-date assessment for the new Government. The way that the process works is that officials compile the assessment, drawing on a wide variety of sources. It involves legal advice, but it is not a legal assessment; it is a policy assessment. It then goes to Ministers, and Ministers themselves make the final decision as to whether they consider that this crosses the clear risk threshold. The decision of previous Ministers, as is a matter of record, was that it did not, and the decision of this Government is that it does.

I should point out, Chair, that this was a process the Foreign Secretary announced as soon as we came into office. He wanted to consider all that evidence, including any new information that had come into place, and make sure that was considered properly in line with our export licensing criteria. He then provided the advice on that basis, which led to the suspension.

Just tell me if I have this wrong. You are saying that it was a different judgment rendered on information that was already available, plus new information that was available in that assessment window.

It is all the information together. Obviously, new events had occurred, and there was also an assessment of what had gone before. The Foreign Secretary then reviewed that very carefully, taking that process incredibly seriously, and then gave the advice to the Secretary of State for Business and Trade.

Thank you for clarifying that. Is one breach not enough? Can you explain why there is a partial suspension over an entire blanket suspension and how that decision has been made? At the moment, you clearly have some information that has been applied in one particular way. Are you able to enlighten us on that?

Well, we have suspended licences to Israel for items that we believe might be used in carrying out or facilitating IDF military operations in the Gaza conflict. There are a number of export licences we have assessed that are not for military use in the current conflict and therefore do not require suspension. This is a rigorous assessment of all those individual licences—extant licences, and of course the consideration of new licences that have come through, as is highlighted in the data Mr Alexander has set out. You consider each one on its merits and consider it on the evidence that is provided, and crucially what that item is. There is some misunderstanding about the number of licences and what they are for. There is obviously a whole range of items here, which include body armour and other materials for use in the food industry. There is a whole series of things that are not what people would consider normally as arms exports, but they come under the export licensing criteria. You have to assess where it is being used: is that being used in Gaza? Is that being used in a way that could constitute a clear risk—a violation of IHL? We assessed that a number of those were, and those were the licences that were suspended.

Can you give us an example of an export licence that you have allowed to stay open where you came to a judgment that there was not a risk of an IHL breach?

Yes, absolutely. For example, there are some export licences relating to civilian use that cover a range of products: food testing, chemicals, telecoms and data equipment. There are a number of licences that would not fall within the kind of items that drew us to concern about how they might be used in violation of IHL.

Have you drawn a boundary around Gaza specifically?

Yes, this was a consideration of those specifically, but obviously we consider all export licences in the round in relation to the criteria. We consider all the criteria against them all. Obviously, there are some things that naturally do not fit within grounds for either a refusal in the first place, or a suspension at any one point.

Are there any open licences still which relate to materiel that is being used in any way in Gaza?

There are currently no extant licences that we assess might be used to commit or facilitate a serious violation of international humanitarian law.

The question was different.

That is subject to the specific measures set out in Parliament excluding exports to the global F-35 programme from the scope of the suspension.

Are there any open licences relating to materiel that is being used in Gaza?

Not for military use.

Not for military use, no.

But for other use?

Not in a way that is risking a lack of compliance with IHL. That is our understanding of the current assessment. There is a current assessment going on and this is a rolling process—we are constantly keeping this under review. That is not just in relation to Gaza, of course, but in relation to all our export licences around the world.

Yes, but there are open licences for things that are being used in Gaza.

I can tell you, just to add to that, not that we know of. As the Minister said, the open licences that remain are for items that are for dual-use goods and have a civilian application, such as equipment for telecoms, chemical manufacturing and so on. Those are not licences that would be for use in Gaza. The licences that have been suspended are those that are for military use in Gaza.

So it is possible that there are licences open for things that are being used in Gaza?

I do not think so.

Not for military use.

The threshold and boundary that have been drawn are military use in Gaza, if your question is implicitly, “Are there open licences which could be facilitating and allowing military use?”

No, that is not my question. My question is really much simpler than that. My question is: are there licences for anything that is currently being used in Gaza? Kate Joseph, you are saying not that you know of.

As the Minister said, the threshold that we have applied is for military use in Gaza, in line with the strategic export licensing criteria. Those are the criteria that we apply, and in line with those criteria there are no extant licences for equipment for military use in Gaza. Otherwise, the situation is that there are extant licences for Israel as a whole because that is not part of the assessment, because the assessment is based on the strategic export licensing criteria that we apply to each licence, and the focus is on military use.

Yes, but it is not a complicated question. It is not a trick question. It is just, “Are there licences open for things that are being used in Israel?” The answer I am taking away is, “Yes.”

Forgive me, is it Israel or Gaza?

Gaza, sorry. Are there licences that are open for anything that is being used in Gaza? The answer is, “There could be.” Not for military use, I agree, but it is possible that there are things that are being used in Gaza that are attached to an open licence issued by us.

The question is what things? That is not the assessment we make. The items that we look at are items for largely commercial or civilian use in Israel.

Aside from the strategic export licensing criteria, when it comes to dual-use goods, what assessment is being conducted of possible use of dual-use goods in Gaza?

That is entirely covered by the assessment that we make. When we receive an export licence, we look at whether it is a military or non-military good, but we apply the same criteria in assessing each export licence, in terms of whether it is a military or non-military good. That will have been part of the assessment process.

On that point, you are describing a process that is looking at export licences across the whole gamut then; it is not just purely Israel and Gaza you are looking at. I assume you are constantly reviewing conflicts elsewhere, such as the one the Saudis are involved in. This is not a process that is designed specifically for Israel—is that right?

Yes, that is correct, but we have a specific process that we follow to assess compliance with international humanitarian law in Gaza for Israel, which Minister Doughty has set out.

If you like, there is a policy focus specifically on Gaza and, in that context, arms export licences and the operation of the SELC in relation to Israel. You are right in saying the international humanitarian law compliance assessment process, of which Minister Doughty spoke, while it sits within the FCDO, was set up to advise on international humanitarian law in this conflict, following a methodology established in the light of the judicial review of arms exports to Saudi Arabia during the Yemen conflict. These were known as the CAAT judgments, after the claimant in that judicial review Campaign Against Arms Trade. If you like, the SELC framework is general in its application. The methodology that is used in relation to the international humanitarian law assessment reflects the judgment in a previous judicial review case, in relation to the conflict in Yemen.

Just to finish off this question, Mr Doughty, can you just take us through the chain of reasoning that took you from the Foreign Secretary’s judgment that there were two grounds in particular for suspecting IHL lack of compliance to a decision to suspend? Just talk us through that chain of reasoning that was followed.

In essence, it is that the SELC produced the evidence, it considered all those points that I raised previously, and the Foreign Secretary was then given a submission that set out the assessment of the risk—the level of belief that there was a risk. He then took a judgment on that and wrote to the Secretary of State for Business and Trade to set that out, and that led to the decision that suspended those licences. It is as straightforward as that. There is a rolling assessment process—we are in the ninth phase of that now—that provides advice, which he considers, and that indicates whether he then writes to the Secretary of State for Business and Trade to recommend a suspension.

My understanding is that there were basically two judgments that were confirmed: first, concerns that Israel was failing to provide adequate essential supplies to civilians; and, secondly, credible claims of mistreatment of detainees. Those were judgments on things that had happened in the past, which led to an inference of a clear risk in the future. Is that basically correct?

Yes.

The third piece of that puzzle is then around an assessment of the conduct of hostilities. There was no judgment, in a sense, despite the evidence that is potentially available, if not obvious. There was no judgment made by His Majesty’s Government on the conduct of hostilities. Is that correct?

That is correct but, as I said, those two decisions about the detainees and humanitarian access obviously give rise to a wider concern about Israel’s willingness to comply with international humanitarian law. Therefore, that decision and the wider approach that is taken influences them, and in effect it would have led to the same suspension of licences. In terms of the outcome, it is the same, but obviously we have to apply the evidential tests on these things very, very carefully. There are often questions around establishing the exact evidence around, say, the proportionality or intent of an individual strike, incident or otherwise. That is why, although we are all appalled by the scenes that we have seen, and the destruction and horrors we have seen—the Foreign Secretary and others have been very, very clear about that—when it comes to judgements around conduct, you have to apply these strict tests. That is why we came to the conclusion that on detainees and humanitarian access, there was a clear and categorical risk. That gives rise to a wider concern about a willingness to comply with IHL.

Because it was clearer for you to make a judgment about intent. Is that correct?

Yes, it is a clearer and more definitive process.

Just feeding that back to you, there are two clear reasons for the partial suspension of licences: a failure to provide adequate essential supplies to civilians and credible claims of mistreatment of detainees, yes?

Just to correct, it is not a partial suspension of licences. There are some licences that have been suspended and some that have not, and that is based on an assessment of each individual licence.

Agreed. As of 30 September, the United Nations Satellite Centre, part of UNITAR, has stated that there are 163,778 structures in Gaza, and 52,564 of those structures have been completely destroyed. That is 32% of all buildings in Gaza that have been destroyed, with another 18,900 severely damaged and so on. Yes? We have tens of thousands of people dead, yet that does not qualify as a reason.

We are very clear on the scale of destruction that you describe. The level of civilian deaths is appalling—it is completely unacceptable. That was exactly why we called for an immediate ceasefire as one of the first things that the Foreign Secretary did, and he has consistently raised—along with other ministerial colleagues—concerns directly with the Israeli Government and colleagues. That is why we have had so much engagement with partners across the region. It is always very, very challenging, and this gets into technical detail for a non-partisan conflict, because obviously this relies on the assessment of proportionality and intent. We can all reach our own views around this, but in the end that requires some understanding about what was going on in, for example, the targeting process or the decision about proportionality. Therefore, third parties often do not have access to that full picture of operational information that would allow you to reach a definitive judgment.

If you are dropping 2,000 lb bombs in an urban area, does that not send its own message to you about the inadequacy of a targeting framework?

As I have said, it is very, very clear to us that the definitive judgments we have been able to reach in those first two areas give rise to a wider concern about willingness to comply with IHL. That is very, very clear.

But nothing yet in the conduct of hostilities gives rise to the same judgment?

Well, we all have very serious concerns, and we have all seen what we have seen in this Committee. But as I said, there is a technicality here about the way the assessments are done, and the way in which those then inform. As I said, the actual outcome of this is the same; the licences were suspended.

I appreciate that, but there is a moral judgment as well as a legal one.

I presume you are comfortable with the UN satellite imagery. You also have had hundreds of RAF flights flying over Gaza on a daily basis, so you can see the day-by-day destruction.

Maybe Lord Coaker wants to say something about the RAF flights.

Sure—maybe let me finish my sentence. I am just trying to probe further as to why this does not qualify and why this is such an unknown. You have been seeing RAF flights flying over for more than 12 months now, so you are seeing day by day the destruction and you know that more than 50,000 buildings have been destroyed. Why is this not qualifying as criteria to stop doing this? How are these buildings being knocked down? Presumably it is by these planes dropping bombs.

The reference is the BBC reported on 25 October: “The Royal Air Force has flown hundreds of surveillance flights over Gaza since last December, reportedly using Shadow R1 spy planes based in nearby Cyprus.” The point that is being made is that there is no shortage of information available to you about the scale of destruction.

I understand the point you are making is about the general picture—the horrific picture that is painted with respect to Gaza. I understand that. Just to clarify, the purpose of the RAF flights was to look for the hostages and to see whether the hostages could be found by the use of the surveillance planes. That was the whole purpose of the RAF planes.

Following up on that, does that mean you are not analysing them for any other reason?

Well, that information is purely and simply used in terms of hostages, and seeing whether we can locate the hostages and, if necessary, sharing that.

You are not using it to work out what is going on in terms of destruction beyond that—you are ignoring that data.

Well, we are not ignoring it, but we are not using it for that purpose.

Minister Doughty, let us come back to the information that is coming into the current assessment window. There is a level of concern that a judgment is not being made about whether the conduct of hostilities is such that it creates future risk of IHL breaches. Is the data that is coming in from RAF flights and other sources going into that assessment framework? It is your cell, Minister Doughty, that is the point.

We consider a wide range of information. Lord Coaker has already answered on the specific point about the purpose of the RAF flights. We consider all information from the United Nations, NGOs, media reporting, open-source information—all these factors are considered.

In terms of the RAF flights, and in terms of the evidence of what is going on and what is happening there, we have all seen the various pictures and seen the various images that are on our TV screens and beyond.

Are you or are you not using the RAF information to understand what is going on in terms of the destruction in Gaza?

Not specifically for that purpose. The purpose is the hostages.

Mr Doughty, do you want to clarify? Have you sought that information from the Ministry of Defence?

To the best of my knowledge, Chair, we have not asked for that information from RAF flights. We are not in any doubt as officials about the level of destruction that has happened, but the purpose of the IHL assessment has been to establish whether military exports to Israel for use in the conflict in Gaza would lead to a clear risk of IHL violation. We have reached the conclusion that there is a clear risk. That is the job of this process. I completely accept that there is a separate question about whether we can take a view as to whether the conduct of hostilities violates IHL. But for the purpose of applying a strategic export licence control, we have the information already that tells us we cannot export this military equipment.

I should just point out that, practically, you have one piece of evidence in front of you—imagery or otherwise—but unless you understand what the process was leading to the targeting, or a decision about target selection or proportionality, which we do not have, you cannot make a definitive decision. That is the challenge. As I said, the net result here is that our decision under those two other criteria, and the view that it is not, therefore, taking those obligations under IHL, leads to the conclusion.

But you would accept that there comes a point when the conduct of hostilities is conducted in such a way that you are inevitably led to a conclusion that regardless of what a targeting process looks like, it is clearly inadequate, it is not working and therefore creates a clear risk of an IHL breach in the future.

Well, we have been led to a clear conclusion that there is a risk that Israel is not complying with IHL.

But not on the grounds of conduct of hostilities?

On the two grounds that I have set out, Chair.

But not on the grounds of conduct of hostilities?

No, because we have not been able to reach that definitive judgment.

If we are not using the RAF imagery to make a determination, have we used the satellite imagery from the BBC and other independent sources, who have estimated that more than 60% of the buildings in Gaza are now uninhabitable? Surely that is disproportionate and surely that therefore constitutes a breach of IHL.

As I say, we are not in any way disputing the level of destruction caused and we are not in any way taking that lightly. Part of the challenge we face is around the nature of international humanitarian law: a relatively flexible body of law that has a threshold that is much higher than many people appreciate. We make every effort as officials to present Ministers with the information that allows them to take a decision. It is for that reason that we focus on the questions of detainees and humanitarian access, because there we have the information that allows us to make a clear determination that is going to be less disputed.

Which is a clear line of sight on evidence of intent, in essence.

Yes, and we do not have access to all that on the conduct side.

I just want to go back to other licences. If the use of earth-moving or ground-clearing equipment, such as bulldozers and diggers and so on, were shown to be used to be clearing farmland that could be producing foods for the people of Gaza to live off, and those products were being supplied by UK companies, would that licence be questionable under any UK legislation?

Criterion number 8, Mr Western, sets out the economic situation and sustainable development of the importing country, and takes into account whether a transfer would undermine the economy or seriously hamper the sustainable development of a recipient. There is a whole series of criteria here that are considered as part of this process, but the large focus in this regard is on 2c.

Yes, 2c sets out use in military operations in the current conflict in Gaza.

I understand. The Government stated in the High Court that a team within FCDO had reached the conclusion that there was insufficient information to decide either way in 411 of 413 incidents against international humanitarian law that they considered. That is 99.5% of all cases; the Government have found only two to challenge the law. Given that 137 journalists have been killed, given that, as we have heard, 60% of the urban area has been destroyed or damaged and is uninhabitable, and given that we had three United Kingdom citizens killed in the World Central Kitchen strike, why are the Government operating on a presumption of innocence rather than a principle of precaution?

Again, without in any way making light of those cases or suggesting that we do not take them very seriously, the way in which the clear risk criterion operates under the strategic export licence criteria is that we need to have concrete evidence that IHL is being violated. It is a reality that deaths and destruction do not automatically equate to IHL violation. IHL is the law of warfare and it involves those things. As we have said, there are two other key reasons why we doubt Israel’s commitment to comply with IHL, and that allows us then to apply the clear risk criterion. Our responsibility now is to ensure that military equipment does not go to the IDF for military use in Gaza. If we had the evidence, we could come to that conclusion through a different route, but we have come to it through the most direct and robust route that we can.

We just talked at some length about the use of RAF spy planes, so it seems that we have some information. It might be in a different Department, but there is information available to the UK Government. What other sources are you using to help you in that determination of the 411 incidents? I am thinking of open-source organisations, such as Bellingcat, for example, and the United Nations Satellite Centre.

Again, it is that absence of understanding the intent and decision-making process on the other side. I should just say, on the World Central Kitchen incident, that it was utterly appalling. We said so. The Foreign Secretary is obviously engaged with the families of the British aid workers who lost their lives in that incident. We have raised this on a number of occasions directly with the Israeli Government. Having one piece of information does not mean you have the definitive full picture, and in some ways that reflects the answer that we gave to the Chair a few moments ago.

But Minister Doughty, I would suggest that trained eyes, which I do not have, looking at this evidence would be able to determine that it was intentional to take out that residential building, or to destroy that farm or whatever, because you can tell by the nature of the debris that is left behind, or because of the nature of the device that has been used. Is it not clearer than we are making out?

Without that full picture—without understanding what was going on on the other side—you cannot have that definitive judgment. That is the difficulty. It does not get away from the horror or the evidence that you see before you that we can all see with our own eyes. That is very much what we reflected when we spoke about that tragic incident, and so many of the other tragic incidents. In terms of the very specific processes that we have, in terms of those criteria and how they are assessed, that is the challenge.

What do you need to understand about the intent of dropping a 2,000 lb bomb into a densely urban area in order not to come to a judgment that that was just completely wrong?

It is a question of saying it is completely wrong versus asking if it is a violation of international humanitarian law. That sounds callous, but that is the difficult judgment that we have to make.

So the judgment you have arrived at is that that was potentially a legal act of war?

We are not setting out as officials to provide a complete analysis of Israel’s compliance with IHL. We are setting out to establish whether, for the purpose of exporting, there is a clear risk that UK exports would violate the strategic export licence criteria through a violation of IHL. We have a process, which has provided advice to the Foreign Secretary, who has concluded that we do not have that confidence that IHL will not be violated. We have suspended licences as a result, and that is on a robust basis where there is less scope for dispute about what has and has not happened.

The intent though, surely, is that the IDF wants to raze Gaza. The Israeli ambassador to the UK even went on record and said, “What did Britain do to Dresden?” Therefore, the logic of that is that they want to flatten and destroy Gaza. That is not what we support, is it?

Well, no, because we support a ceasefire. That was the first thing that we did when coming into government. We commissioned this review, we have made sure that we restarted the funding to UNRWA, and we have taken a whole series of decisions—by the way, not just in relation to Gaza, but in terms of the sanctions that we have done on activities and individuals in the West Bank, too. We were the first to call for a ceasefire in Lebanon. We have had a very, very consistent approach that this conflict is not a way to solve any issues between Israel and Palestinians, or Lebanon or anybody else. This is a very, very clear position of the Government, and we have argued for a ceasefire from day one. So of course we do not support that.

Just on that point, on 12 November, the Secretary of State said that Israel is not committed to comply with international humanitarian law. That was the decision that was made. Article 7 of the Arms Trade Treaty does not talk about this clarification of intent; it talks about, “Could be used.” That is the key phrase: “Could be used” for serious violations of international humanitarian law. I am just struggling to understand how this is about the prediction of its use, not, as you have formally stated, whether you can verify it has happened. I am just drawing your attention to those two paradoxes.

We are confident that the decisions that we have taken are compliant with all our international legal obligations. That includes a range of the measures. Fundamentally, we are applying the strategic export licensing criterion 2c, based on which those decisions have been made.

Well, Mr Poynton, we respect the independence of the International Criminal Court in investigating and prosecuting the most serious crimes of international concern. We are party to the Rome statute, and we take our obligations to that very, very seriously, as we do to the role of the ICJ. In terms of the specific issues in relation to the SELC, we will continue to take account of all the relevant information. The International Criminal Court’s ruling, of course, is consistent with our own assessments that there is a risk that relevant exports might be used to commit or facilitate violations of international humanitarian law. We take it, as we do with all the evidence that is provided.

All the matters are considered as part of that rolling assessment process.

Again, we just have to go back to that principle that we consider each of these licences on their own merits, and whether they comply with the strategic export licensing criteria. Each licence has been looked at.

In the information that we have shared with the Committee today, over half the licences are non-military, and less than half of the extant military licences are for the IDF. Regarding the perception that the licences per se are open—notwithstanding the judgment of the Foreign Secretary and the decision of the Secretary of State for Business and Trade—I would not want to leave the misapprehension that these were military goods—certainly military goods directed towards the conflict in Gaza.

Each country has its own domestic export licensing processes, and each country has different legal systems. There are different processes in place and there are going to be different judgments taken in different places. But we regularly discuss these issues with our allies all the time, on the visits that we are taking within the region. I was discussing these issues with King Abdullah and fellow NATO members at the NATO Foreign Ministers summit just last week. All these matters are under consideration all the time, and we discuss them as we would any other matter with allies.

according to the Government’s opening statement to the judicial review, the September ministerial decision on licences followed an assessment by the Foreign Secretary that “Israel is overall not committed to compliance with international humanitarian law in Gaza, including in the conduct of hostilities.” Why did this not lead to a suspension of all arms exports?

For the very reasons that I have set out, which is that each licence is considered on its own merits. As Mr Alexander set out, a substantial number of these are not for military purposes—they would not even have any relevance or relation to Gaza. They have to be considered on what they are and what they are used for, and that is the decision that was taken.

Are there any red lines which would lead to the suspension of all licences, regardless of their end use, if Israel crossed them?

If they did not comply with the licensing criteria.

For example, you are arguing about body armour for journalists that can be exported to Israel; I would not see that as being consistent with Government policy. In that sense, the risk of the blanket ban that you describe, in relation to the strategic arms export licence regime, would be that it would have unintended consequences. With respect, Chair, I would want to emphasise the fact that notwithstanding the important debate that the Committee has had with us today as to the third of the criteria on which the Foreign Secretary reached his judgment and was advised ahead of his decision in September, the basis on which the Secretary of State for Business and Trade made his decision was unaffected by which of the three criteria were deemed to have met the threshold by the State of Israel. In that sense, even if there had been definitive evidence in terms of proportionality and intent, and a different judgment had been reached or been capable of being reached in relation to the conduct of the conflict, we would still in all likelihood be sitting with identical numbers that were shared with the Committee today.

So, in a sense, there are no red lines.

No, the red lines have been established by a very clear sense that there is a risk of breach of international humanitarian law. That has had an identical effect in expression of those figures, as if similar criteria had been reached in relation to the conduct of the conflict. Far from there being no red lines, the Foreign Secretary established a very clear red line in relation to what he judged was a significant risk in relation to the suspension of licences.

That is absolutely the process that was undertaken and, again, I point out that this was a process we launched on day one. We considered the evidence, took a decision, and it led to the suspension of a number of the licences. That is a clear material difference, so that is a line being crossed and a decision being taken as a result of it.

There are no exceptions within that framework of red lines that you have just set out.

When you describe exceptions and when you sought to draw a distinction between moral and legal responsibilities, the basis, as I sought to evidence earlier, on which the Foreign Secretary is advised and then seeks to reach his judgment is set down very clearly in terms of criterion 2c, which states that, “The Government will not issue export licences if there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law.” That affects the licences, but in terms of the judgment that the Foreign Secretary reaches, that is informed by the criteria that we have sought to share with the Committee. Notwithstanding the interest and natural revulsion of what we have witnessed in terms of the conduct of the conflict, it is very clear in terms of the steps that the assessment cell and then the Foreign Secretary are obliged to make on the basis of the previous judicial review case.

This is very helpful. There is an assessment of the risk of an IHL breach and that then comes to you. You then have a framework of red lines that you have just set out. You have just said that that framework of red lines is in 2c.

There is an assessment that informs the Foreign Secretary’s opinion. The Foreign Secretary then writes to the Secretary of State for Business and Trade, who then makes a judgment and determination in relation to licences.

That is the framework.

Minister Doughty, there is no basis in the strategic export licensing criteria to permit export licences for partial compliance with international humanitarian law, but the decision to suspend some licences implies you judge only partial compliance with IHL. How do you square this with your framework for assessing applications under criterion 2c?

I would go back to the point I made earlier: it is not partial suspension or compliance; it is that we decided to suspend a number of licences, of all the licences, because some were either not directly related to the conflict or were items that we did not judge to be at risk of violations of IHL. The ones that we believed are have been suspended, and indeed those are the criteria that are used for considering the new licences in the data that you have been provided.

This is the point I was trying to make earlier. As soon as the Foreign Secretary reached a determination that there was that risk in terms of a breach of international humanitarian law, the effect in terms of the judgment that was then made by the Secretary of State for Business and Trade was identical to if there had been other grounds on which the Foreign Secretary had reached the same judgment.

We have a clear assessment of a potential breach of IHF and we have a clear framework for basically suspending licences where that breach takes place, which brings us to the intriguing mystery of why F-35 parts are still being allowed to be exported.

Can you confirm that the Government are reviewing the F-35 exemption and, if so, what is the scope of this review?

The Government are not currently reviewing the criteria. We set out very clearly in our advice to the Business Secretary and Foreign Secretary why we thought it important that F-35 components for particular reasons were exempted from the licence regime. There are always discussions that go on, but there is no particular appetite anywhere for changes to that. It has been discussed at official levels; it requires international agreement with all the partner nations that are part of the F-35 international collaboration agreement. No doubt those discussions will continue, but as it stands, the desire for us to be exempted because of the nature of the international collaboration the F-35 programme represents is why we will continue to advise that we should exempt components from the licensing regime.

There is no review under way of the F-35 carve-out?

If I could just contextualise that slightly.

Before you do, Mr Lillie, I just want to confirm with Minister Alexander that there is no current review under way of the F-35 carve-out.

Well, there is always a review. As I say, there is a constant review going on as we carry on. We look at various programmes and the F-35 will be part of that as a review.

Every time we do an IHL assessment, we then provide new advice on the suspension in the light of that. As part of providing advice to the Foreign Secretary to give to the Secretary of State for Business and Trade, we will need to advise him on whether to maintain the suspension of licences and, as part of that, we will need to provide advice on how the F-35 fits in. That will need to take account of whatever up-to-date information we have, which is not to say that it will not reach a different conclusion.

In a sense there is a review under way because you are in the process of updating your IHL assessment?

Yes—review with a small “r” is how I would characterise it.

We just need to try to understand a little more about what is being exported here. As you would expect, we took the step of writing to Lockheed Martin to ask for evidence ahead of this session, and I received its reply last night. Lockheed Martin says that it is not authorised to release information about the programme without the approval of the Joint Program Office, and the US Department of Defense has advised that any questions the Committee has about the programme should be directed to the US Government. Now I would prefer not to do that, so we are going to ask you the questions, Minister Coaker, and Tan Dhesi is going to lead the questioning.

Before I come on to the F-35s, Minister Alexander, I just wanted some clarification on context. I know that there are some in government who have been at pains to say that the UK is not the primary source of military weaponry—that, in fact, it is the US and Germany, and that the level of exports has actually dropped from £42 million in 2022 to £18 million in 2023. Is that a correct categorisation?

You are certainly correct in your broad assumption that first, there is no direct military aid provided by the UK Government in a manner that will be familiar to you from the United States. Often when these issues are discussed in the public prints, the perception is left that somehow the UK Government are directly transferring military equipment. What we are discussing today, as you rightly recognise, is UK-based companies operating under the SELC—under the framework and guidance. In terms of what the level of export and import from Israel is, notwithstanding the horrific events of 7 October and the appalling aftermath, I am very happy to write to you to set out the exact numbers that are available to me within DBT.

The stated value of exports is at £18 million, as of last year. You are not aware of that figure?

I do not have that figure in front of me, and I certainly would not want to mislead you or the Committee.

Some people have stated that to describe the low levels. Minister Coaker, as Defence Minister, given the context that we have a review going on with a small “r”, can you elaborate and explain further the Government’s statement that the “effects of suspending all licences for the F-35 programme would undermine the global F-35 supply chain that is vital for the security of the UK, our allies and NATO”? It goes on to say, “It is not currently possible to suspend licensing of F-35 components for use by Israel without prejudicing the entire global F-35 programme.” Can you just explain to help us to understand that?

Forgive me for interrupting my colleague, but just I wanted to clarify something at the earliest opportunity: the figure of £18 million that you mentioned is actually £18.2 million and that is actually military goods exported. That does not reflect general trade.

In 2023? Okay.

The Joint Program Office from the United States will order components such as ejector seats and rear tail parts for the F-35 programme, and they will be made here. They are then exported from the UK to the US, either to assemble the aircraft or to become part of the global pool of parts. When they leave the UK, the UK then loses sight in terms of where they go, but they go into that global pool either for planes that need to be replaced, or to be assembled as part of the assembly programme for the making of the initial F-35s. That is all done as part of an international collaboration agreement. We make parts, other countries make parts—there are nine partner nations in terms of various parts that are made—and then they are assembled together. That is all done as part of a collaboration agreement. If one part pulls out, that undermines the whole programme. Now, the F-35 is currently involved in all sorts of peace and security operations across the globe, not least with respect to defending the border in terms of what has happened in Ukraine. You and many others have seen the operation of the F-35s from the Prince of Wales aircraft carrier, which is going to the Indo-Pacific next year. That is just with respect to us; there are all sorts of other countries operating the F-35. It is our understanding that if we withdraw or try to change unilaterally the collaborative agreement, that undermines the whole programme.

I am fully cognisant of that, and that is probably why the Defence Secretary said that the suspension of F-35 licences would have a “profound impact on international peace and security.” Just to clarify, is it only nuts and bolts and ejector seats that we are sending over to the US for the F-35 and nothing else?

It is things like ejector seats, the rear parts of the tail on the back, batteries, and various other parts that go to make up parts of the aircraft. We estimate that the value, in terms of what is provided by this country, is approximately 15%.

Would we lose the contract if we said no to the US and Lockheed Martin?

The Joint Program Office contracts to Pratt & Whitney and to Lockheed to either put the planes together or to store in the global pool, which then sends out if people need spares or whatever. The assessment we make is that because we have that international collaboration agreement, if we unilaterally tried to do that, we would risk being taken out of the overall collaboration of contracts. That would undermine the whole F-35 project, which at the moment is 1,000 aircraft across the world, and by the end of the project we estimate it to be 3,500.

Minister Coaker, why are the F-35 parts untrackable?

As I explained to the Chair of the Defence Committee, the way the system works is that we are contracted to make the components here, they are made, and then when they leave this country they go to the US and become the property of the US Government. We do not track them from there and, in that sense, we lose sight of them once they leave the UK.

Would it be technically possible to actually track them using the NATO codification system?

They are tracked, but they are tracked by the US. The US will track them as to where they go. They are not tracked by the UK.

But they are technically tracked?

They are tracked by the US.

Are the F-35 parts not constantly trackable by GPS, or in a just-in-time supply chain that you could then see, from where they have initially set off from to another country where they have been deployed?

Tracking a part does not necessarily mean that a part can be stopped. If we are talking about how we can stop parts from entering the programme, the only place is at the UK border. If we are talking about UK components, it is at the border because once they go out, they are not our property.

Is that a technical issue or a contractual issue?

It is part of the arrangement that we have with respect to how the F-35 programme operates.

It is a contractual issue?

It is an arrangement.

The US contracts us to provide the components, so in effect, we export them to the US. We understand that once they are in the US system, the US can track the components, whether they go into building an aircraft or into the spares pool, but the UK has no ability to influence where they go once they are within the US system.

Contractually?

Yes.

Yes. We ourselves have no contractual relationship with the US Government, in respect to that.

It seems that our contractual responsibilities to Lockheed Martin are trumping our responsibilities to international humanitarian law. That is what many people on this Committee object to. Do you agree with that?

I understand that. I understand the point you are making. Nobody can fail to be moved by the horrific pictures we see on our television screens. What we are saying as a Ministry of Defence, and I am saying as a Defence Minister, is that alongside that horror we also have to consider—this was the advice that went from the Secretary of State to those who take the decision about export licensing—the programme that the F-35 is part of, which delivers peace and security in many parts of the world and defends our freedom. We have to make those judgments, and they are tough judgments to make. I am not going to put that against it; I am just saying these are considerations that we have to take.

We are going to come back to the framework within which that judgment is made in a moment. Sonia Kumar, do you want to just finish that point?

What sort of measures have been put in place to ensure the integrity and security of the F-35 supply chain, particularly with unauthorised transfers to non-partnered nations?

Our belief is that the rules and regulations that the US will put in place will prevent the unauthorised use of the parts we provide. The US operates according to rules and regulations; it is not a free-for-all with respect to that. It has its own standards, and we sell into that market, and that is where those sorts of things that you are concerned about will be dealt with.

It is technically possible. It is not contractually done, but the legality is a question that Antonia Bance is going to pose.

Can you tell me what is the legal basis for the exemption of components for the F-35 programme, please?

In the strategic framework that my colleagues Mr Alexander and Mr Doughty have laid out, there are opportunities for case-by-case exemptions to be made. If you look at the strategic framework when it was put by Minister Trevelyan in 2021, she laid out that—notwithstanding the strategic export licensing criteria—on a case-by-case basis, where it was necessary, you could take into account all the relevant information available at the time when a licence application is considered.

This is just extremely important. That is the legal basis on which this carve-out stands.

Well, it stands on the basis that it is legal for us to act in the way that we are because laid out in Parliament was the ability to have a case-by-case application applied to different licences.

Is this the first time it has been used?

As far as I am aware. If I am wrong, I will be corrected by anybody else who knows.

Perhaps I can offer some assistance. On the criteria, and the basis on which it was used in the written ministerial statement that introduced the criteria in 2021—about which the Committee has already spoken—it was set out explicitly by the then Secretary of State that “Application of the criteria would be without prejudice to the application to specific cases of specific measures.” It is under that provision that the Secretary of State has announced to Parliament, in a statement of 2 September, the departure from the SELC and exclusion of the F-35 licences from the scope of the suspension in that case. My understanding is there has been one previous use of that exemption, which was in relation to the invasion of Ukraine by Russia. Kate, could you confirm that?

Yes, exactly right—as an interim measure while sanctions were put in place on Russia.

Here is our challenge: despite the without prejudice paragraph that you refer to, which is on page 2 of the statement made on 8 December 2021, the statement says the SELC are set out in terms that suggest they are meant to be comprehensive. It says, “These Criteria will be applied with immediate effect to all licence decisions”. It is unequivocal. The Government’s summary grounds of defence in the Al-Haq judicial review, paragraph 24, says, “Applications for new export licences are assessed according to the eight criteria set out in the SELC.” There is no qualification that is mentioned in that judicial review summary. The challenge that we have is that we have two conflicting, colliding and contradictory pieces of information. On the one hand, you have a statement on SELC, which is in Minister Trevelyan’s statement, and you have set that out in the response to the Al-Haq case. On the other side, what gives you your latitude is the without prejudice paragraph. The challenge that we have in Parliament is to try to work out which trumps the other.

It is not a matter of trumping one or the other; it is reading the complete statement offered by Minister Trevelyan to the Commons at the time, in which literally she used the phrase, “The application of these criteria will be without prejudice to the application of specific cases of specific measures as may be announced to Parliament from time to time.” That without prejudice clause was exercised by the Secretary of State on 2 September, in terms of the statement that was offered. If you like, it was anticipated by a previous Government that there could be circumstances, as in the case of the need to address the issue of the Ukraine invasion, or in this case the F-35 exclusion. Far from deviating from the written ministerial statement, it seems to me to be exercising and giving expression to the without prejudice clause to which you referred.

A few moments ago, Minister Alexander, you described 2c as the cage of red lines within which decisions are taken. What you are now saying is that they are reddish, because actually there is an override that is available, which is the without prejudice section of the guidance.

I am simply reflecting what has been the stated position, both of the previous Government and indeed of this Government, which is that the framework is set out, but there is a without prejudice clause that was identified by Minister Trevelyan, and that has been exercised on two occasions: first, in relation to the invasion of Ukraine by Russia; and, secondly, the F-35 exclusion.

If the Government can unilaterally create exemptions from the SELC, what is there to stop this Government and future Governments applying what appears to be some sort of business security exemption in applying the criteria in future? Given that we are such close allies with the other partners in the F-35 programme that we are building fighter planes together, why have this Government not requested that the US uses its tracking capabilities to assure us that British-made parts are not being used in Gaza?

There have been discussions; there are always discussions that go on. The overall assessment that we have made with respect to this—this is why we have applied the exemptions using the without prejudice clause—is that the overall security picture for our nation and the allies that we stand with, given the increased conflict and the increased dangers that we face in the world, requires us to apply the exemptions and the without prejudice clause that Minister Trevelyan has laid out in that statement.

The Minister is on his feet and so there is a danger that we will have a vote called very quickly. Let me just move on from 2c to 1b. As you will know, criterion 1b says: “The Government will not grant a licence if to do so would be inconsistent with…the UK’s obligations under the United Nations Arms Trade Treaty”. Article 7 of that treaty says that, “If the export is not prohibited under Article 6, each exporting State Party… shall…assess the potential that conventional arms or items…could be used to…commit or facilitate a serious violation of international humanitarian law.” In those circumstances, “the exporting State Party shall not authorise the export.” We have gone through 2c with a fine-toothed comb, but given what was said at the top of this meeting about the breach of humanitarian law that the Government have accepted, and given that that has triggered a decision to suspend some arms licences, please can you tell us how your decision making on F-35s is compatible with the obligations on you under 1b and the Arms Trade Treaty? Minister Doughty.

We are absolutely convinced that we are complying with our international obligations. I am not going to comment on the ongoing process—the judicial review. We have the whole criteria here; we have the obligations. Minister Alexander has read out the explanation of the without prejudice clause, and Lord Coaker has explained the situation in relation to the F-35s and why that exemption was necessary. That is all I can say on this at this time.

Well, you have a sub judice waiver—you are protected by the privilege of Parliament and it would appear to us that, given your assessment that there is a serious risk of a breach of international humanitarian law, it is difficult for us to understand how you are honouring article 7 of the Arms Trade Treaty. We would like an explanation of why you think you are acting in line with what seems to us a very clear set of prescriptions in the Arms Trade Treaty.

As I said, I am not going to get into the detail of matters that are before the court at the moment.

Well, I am asking you for the detail. Parliamentary scrutiny and accountability to Parliament is a critical bit of the legality of your decision taking.

Absolutely. I completely understand that, Chair. We have a series of obligations, as you say, under the Arms Trade Treaty, under our own criteria, and others. They are all considered as part of this process. The advice that we have received is that they are consistent with the decisions that have been reached. That is the position. I could get into individual clauses in the Arms Trade Treaty or other items, but it is not helpful for us to litigate that process here. We are convinced that there is very clear basis here for the decisions that have been reached, and that was the advice that was provided. Of course, a range of Departments is involved in these decisions. That advice has been provided to the Secretary of State for Business and Trade, and the Secretary of State for Business and Trade has considered those matters and taken the decision in relation to the licences, including with the exemption that Lord Coaker has explained the reasons for. That is the process: it has many parts to it, and advice has been provided and the decision has been taken.

Well, it is great that you are convinced, but I would like to understand what the basis of your convictions is.

It is the basis that we have considered all the legal instruments and all the considerations that Lord Coaker and Minister Alexander have set out. That is the decision that is reached. It is reached on the totality of all the evidence that is provided: the legal advice, all those different pieces of information and the wider context that Lord Coaker has set out. A holistic decision is then taken—the Secretary of State takes that decision.

But the Arms Trade Treaty is really clear. It says that if “there is an overriding risk” of an international humanitarian law breach, “the exporting State Party shall not authorise the export.” Your guidance says, at criterion 1b, “The Government will not grant a licence if to do so would be inconsistent with…the UK’s obligations under the United Nations Arms Trade Treaty”. In your submission to the courts on 15 November, it says in black and white that the Government accept that the F-35 exports may be used to breach international humanitarian law. You have said it yourself, and I cannot understand how you can see it as compatible with your obligations under the Arms Trade Treaty.

We have set out the case, we have set out the reasons for the decision—the totality of all the legal obligations, the context on the ground, and the reasons that Lord Coaker has set out. It has been considered in the round, and that is what the Secretary of State for Business and Trade has made the decision on the basis of.

There is a vote in the House, and so this sitting is concluding. If there was a case of being saved by the bell, this is it. I am not convinced, Minister Doughty, by your explanation of the UK’s compatibility between this decision and the Arms Trade Treaty, I am afraid. That will obviously be debated in the House on Monday on the basis of the transcript that we will have seen. You have presented your evidence before us today and that is on the record. Thank you to all our Ministers for coming along. Kate, Stephen, colleagues, thank you so much for being here. That concludes this session.