Author: bingopalladium0662

Here we reproduce the informal advice we received from a leading planning KC (barrister) about the potential grounds for judicial review of the Planning Inspectorate’s decision to overturn BHCC’s refusal of planning permission for L3 Harris’ extension. We have sent this to Elizabeth Culbert, Head of Legal Services at the Council, and to Councillors on the
Planning Committee. If you wish to share it with your Councillor to show them that the Council does have the option to defend its principled decision, please do so.

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The Inspector accepts that the Public Sector Equality Duty (PSED) included in the Equalities Act 2010 (the Act) is a material consideration; and that paragraph 135f of the NPPF requires decisions to create places that are safe. He does not demure from the original Decision’s assertion that ‘The PSED includes three aims which include the need to eliminate discrimination and other conduct prohibited by the Act, advance equality of opportunity and of direct relevance to this appeal, foster good relations between persons who share a relevant protected characteristic and persons who do not.’

He attempts to distinguish R (Hough) v. SSDH [2022] EWHC 1635 from the present case in that: “the facts of that case can be distinguished from the scheme before me as there was a direct link between the local community’s concerns and the proposed use. In contrast in this case, it is unclear whether the anecdotal evidence in respect of community tensions is directly related to the appeal scheme.” Whilst it may well be that the scheme has yet to give rise to an increase in ‘community tensions’ it seems to me that there was ample evidence that it is likely to do so.

The Inspector also says [at 9]: “The EqIA identifies a rise in hate crimes nationally between ethnic groups linked to the conflict in the Middle East but it refers only to anecdotal evidence that hate crimes are rising in the local area. This evidence is included in its Community Safety and Crime Reduction Strategy 2023-26. There have also been reports to elected Members from representatives of local ethnic groups that their members feel increasingly unsafe and isolated. However, no evidence is before me identifying a direct link between these concerns and the appeal scheme.”

It is difficult to see how he reconciles that stark conclusion with:

• [6] The application and appeal have attracted around 650 and around 1,000 individual objections respectively with 4 petitions signed by around 1,000 people.
• Only one letter of support is recorded in favour of the application.
• The objections are drawn from a broad spectrum of groups and individuals who raise a range of issues. However, the majority refer to the City Council’s designation of Brighton and Hove as a Sanctuary City; a place which welcomes and provides a safe haven for asylum seekers and refugees.
• These objections identify that the appeal scheme is contrary to this designation.
• [7] From my assessment of the public consultation comments, it appears that the manufacture of military hardware at the site was known to several local groups before the application was submitted but the application and appeal have highlighted its presence in the Brighton area
• The EqIA identifies a rise in hate crimes nationally between ethnic groups linked to the conflict in the Middle East but it refers only to anecdotal evidence that hate crimes are rising in the local area. This evidence is included in its Community Safety and Crime Reduction Strategy 2023-26.
• There have also been reports to elected Members from representatives of local ethnic groups that their members feel increasingly unsafe and isolated.

 Simply, the fact that [at 11] “There is no evidence that the original grant of the temporary planning permission in 2018, has contributed to community tensions and adversely impacted on ethnic groups who share protected characteristics” is not, to my mind, evidence that the proposed scheme will not ‘contribute .. to community tensions and adversely impact .. on ethnic groups’ since, as the Inspector recognises, ‘ .. the application and appeal have highlighted [the manufacture of military hardware at the site] in the Brighton area at a time of geopolitical tensions associated with the conflicts in Gaza and the Middle East’.

He also says that there is ‘.. no evidence is before me identifying a direct link between these concerns and the appeal scheme’, whilst acknowledging ‘The application and appeal have attracted around 650 and around 1,000 individual objections respectively with 4 petitions signed by around 1,000 people.’’

Also, not only does the Planning Officer’s Report say that (as you have pointed out): “Figures relating specifically to anti-Semitic and Islamophobic hate crimes are not separated out but there is anecdotal evidence that Brighton & Hove has experienced a rise in antisemitic and anti-Muslim hate incidents.” But it also records the fact that there have been “demonstrations calling for a ceasefire in Gaza/Israel hostilities.”

I have not seen what evidence was tendered in support of the appeal, but the City Council’s designation of Brighton and Hove as a ‘Sanctuary City’, combined with evidence in a Planning Officer’s Report of ‘demonstrations’ does seem to me to be fairly compelling.

I think it is arguable that the Inspector’s disregard of the linked concerns as mere ‘anecdotal evidence’ when the Community Safety and Crime Reduction Strategy 2023-26 apparently contains evidence that ‘that hate crimes are rising in the local area’ and ‘There have also been reports to elected Members from representatives of local ethnic groups that their members feel increasingly unsafe and isolated’, borders on the Wednesbury unreasonable.

Whilst there are a number of planning cases where mere ‘anecdotal evidence’ has been insufficient to amount to a ‘material consideration’ it seems to me that the aggregated evidence in the present case may well convince a High Court judge that the threshold had been met (see, for example, Windsor and Regional Properties Limited v Secretary of State for the Environment and Another [1991] Lexis Citation 2051 where anecdotal evidence was one feature – amongst others – in an Inspector’s consideration).

On 24 July the Planning Inspectorate allowed L3 Harris’ appeal against our Council’s refusal to grant planning permission for their extension. So now, they have permission to continue business as usual. BUT: there is a thread of hope for us to stop this happening. The Council has the option to ask for a judicial review, if it thinks there has been an error in law. It has to do this in the next month. Let’s work fast to keep the pressure on the Council to help them defend their decision on equalities grounds! Write to your local councillor: https://democracy.brighton-hove.gov.uk/mgFindMember.aspx.

Here is a template letter for you to use and adapt as you see fit:

Dear *insert your local councillor’s name*

I have learnt that the Planning Inspectorate has overturned Brighton and Hove City Council’s decision to refuse retrospective planning application for the extension of L3 Harris’s arms factory in Moulsecoomb.

At a time when bombs from F35 war planes released with parts made in Brighton are still falling on people in Gaza as they starve from lack of aid, I find this decision appalling. I also believe it disregards our local democracy, undermines the council, and is mistaken in a point of law relating to social cohesion and the evidence of social harm.

I am disappointed that the very real effects on our city of the presence of an arms factory implicated in war crimes in Palestine, have been dismissed. The Inspectorate has disregarded as ‘anecdotal evidence’ the real and fact-based impacts on social cohesion in our community.

In fact, time and again the Inspectorate were presented with evidence-based witness statements, which they chose to dismiss as anecdotal. However, there is no other means of recording community harms relating to Islamophobia, anti-Semitism, or the particular forms of distress caused to Palestinians in Brighton. Over 650 local residents wrote to object to the factory’s presence, many of them citing our City of Sanctuary status and upholding our collective beliefs in equalities and human hights.

I urge BHCC to stand by their considered and democratic decision to refuse L3 Harris’ planning permission and appeal the decision of the Planning Inspectorate through the Judicial Review process.

I understand that L3 Harris intend to move to Shoreham airport in 2027. Brighton and Hove City Council co-owns the freehold to the airport. I urge BHCC to stand by its principles and prevent the factory from operating there or anywhere that it has jurisdiction over.

I look forward to your response.

L3 Harris are appealing against the Council’s decision to refuse them planning permission for their extension. The case is now going to the Planning Inspectorate (an independent body, based in Bristol), who will decide whether to uphold the Council’s decision or overturn it in favour of the company.

Here’s two things you can do to help kick the factory out of our city.

1. Write to the Planning Inspectorate ASAP to register your concerns about the company’s presence in our city. The deadline is 8 January: why not do it today and then ask your friends to do the same! It is a two step process and will take less than five minutes.

Click here to access the Planning Inspectorate website, and then click on “Make a Representation” to write your objection. There is some sample wording at the bottom of this page you can copy, paste and amend – or feel free to write your own representation!

You are writing in your capacity as an “interested party / person”.

(If you need the 7-digit case reference number at any point, it is 3355883)

Sample Wording:

Here’s some sample wording and information you can adapt: do use your own language to make your own concerns felt, and so the Inspectorate realise the range of feeling about the factory! We have highlighted a few areas for personalisation in italics and with square brackets. The main advice we have is to centre your representation on how the arms factory in Brighton impacts you as a community member and resident – L3Harris’s appeal argues that the presence of the factory in Brighton has little impact on its residents and we need to show them how wrong they are.

[STARTS]

I urge the Planning Inspectorate to reject L3 Harris’ appeal of Brighton and Hove City Council’s refusal of planning permission for its extension. I am a resident of the city [insert other relevant detail here e.g. I live near the factory, I support the City of Sanctuary status.] I support the Council’s decision to refuse planning permission and I urge the Inspectorate to hold a public hearing into the case, given the gravity of the issues at stake and the level of local concern about the factory’s presence in our city.

[If you have any concerns about social cohesion e.g. if you are a person of faith, a victim of racial harrassment or religious intolerance as a result of the company’s presence in the city and the unfolding genocide in Palestine, or a community member or activist with one of the many groups in the city, let the Planning Inspectorate know.]

Brighton and Hove City Council took great care over its decision, seeking legal advice to guide it and taking three additional months from when the item was first due to be heard by Planning Committee. This was not a decision taken lightly and they did consider the development framework and national planning policy. The Council decided that “the risks to community cohesion outweigh all other material considerations.”

L3Harris appears to be using the appeal as a delaying tactic, to draw out the legal and bureaucratic process to avoid having to take down its extension before its lease runs out 2027. The extension was built as a temporary structure, and was due to be demolished at the end of 2023 anyway: there is no reason the company cannot demolish it now.

[ENDS]

2. Write to your Councillors and encourage them to defend the Council’s decision. You can find your Councillors here. The city Planning case number is BH2023/03236 and the Planning Inspectorate Appeal reference is APP/Q1445/W/24/3355883. You can congratulate the Council on making a decision in favour of social cohesion, and urge them to ensure the Council robustly defends its decision with the Planning Inspectorate.

To contact the Stop L3Harris campaign, follow us on Instagram at @stopl3harris, or email us at stopl3harris@proton.me

In June 2024, following a city-wide campaign by residents, Brighton and Hove City Council refused L3Harris planning permission for the extension to their factory. That was a significant victory for people power: the Council were ready to approve the application, and it was residents’ concerns that prompted them to seek legal advice and ultimately to reject the application.  

The Council Planning Committee took its decision based on its public sector equality duty: that means that any benefits from the arms company are outweighed by the factory’s negative impact on community cohesion. The presence of the company in the city undermines Brighton’s commitment to being a City of Sanctuary and harms good relations between members of the city community.

The planning application only relates to the extension, not the main factory. And the refusal of planning permission didn’t mean that the company had to tear down the extension immediately. There was a six-month appeal window: L3Harris has now submitted an appeal. The appeal is heard independently by the Planning Inspectorate, not by Brighton and Hove City Council.

Residents have until 8 January to submit comments to the Planning Inspectorate. More information will be available soon about the detail of L3Harris’ appeal.

Come to an open meeting on Thursday 12 December at 6pm at Friends Meeting House to hash out ideas for resisting the arms company!

Here is the briefing that the Stop L3 Harris campaign sent to the Chair of Brighton and Hove City Council, Chair of the Planning Committee, Head of Legal Services, and Democratic Services. Information correct as of 21 February 2024.  

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We write in support of the Stop L3 Harris campaign by local residents to provide you and members of the Planning Committee with information regarding L3Harris Release and Integrated Solutions’ involvement in the war in Gaza to assist you in determining whether to grant permission for its planning application to make permanent its temporary extension, BH2023/03236. We are scholars and practitioners of international politics, the arms trade and international law, resident in the city. We understand that the application will be discussed at the meeting of the Planning Committee on Wednesday 6 March 2024. [Note: since we submitted this, the Council has deferred its decision, citing the need to take legal advice.] 

Council public statements 

We note the following positions publicly held by Brighton and Hove City Council: 

1. Article 11 of the city Constitution states that “All decisions of the Council will be made in accordance with … respect for human rights.” 

2. As a City of Sanctuary, Brighton and Hove is committed to a “culture of hospitality and welcome, especially for refugees seeking sanctuary from war and persecution.”

3. ​​​​​​​The Council’s anti-racism strategy states that “it is not enough to be ‘not racist’ We must be anti-racist.” “We want communities to feel able to hold us to account and, importantly, ensure that we hold ourselves to account.” Anti-racist work already underway in the city includes a support pathway for asylum seekers given the right to remain. 

4. ​​​​​​​The city’s modern slavery statement states that the Council “recognises that we have a duty to ensure that public money is spent responsibly and to ensure that our activities are conducted in an ethical, responsible, and sustainable manner.” 

5. ​​​​​​​We applaud these statements and offer the following information in support of decision-making. It is our view that granting planning permission to L3Harris, and indeed allowing L3Harris to operate in the city of Brighton and Hove at all, would breach all four of these commitments.  

The company: L3Harris Release and Integrated Solutions 

6. ​​​​​​​L3 Harris Release and Integrated Solutions is located at Home Farm Business Park and was formerly known as EDO-MBM Technology Ltd. EDO Corporation was bought by ITT Corporation in 2007; in 2015 Harris bought ITT; Harris and L3 merged in July 2019 to become one of the ten largest arms companies in the world. Brighton and Hove City Council owns the freehold to the land to which L3Harris has the leasehold (Unit 2, Home Farm Business Park). 

7. ​​​​​​​The company employs fewer than 150 staff, at a site on the outskirts of the city; it cannot be said to make a significant contribution to the local economy. We believe in the right to decent work that protects the fundamental rights of all. 

​​​Israel’s conduct in Gaza 

8. ​​​​​​​In this section we provide a brief summary of what reputable and reliable sources have documented about Israel’s conduct in relation to human rights and international humanitarian law (we deal with the role of L3 Harris below). This is by no means exhaustive but offers an overview of the available evidence that Israel’s conduct in Gaza is in violation of international law. 

9. ​​​​​​​The death toll in Gaza, according to the United Nations Office for the Coordination of Humanitarian Affairs, stands at 28,473+ at the time of writing. This does not include those whose bodies cannot be counted as they are under rubble. On recent analysis by UN Women, 70% of the killed are women or children. Almost 70,000 Palestinians have been reported injured. As experts from the John Hopkins Bloomberg School of Public Health have attested, the Gaza Ministry of Health (MoH) “has historically reported accurate mortality data, with discrepancies between MoH reporting and independent United Nations analyses ranging from 1.5% to 3.8% in previous conflicts”. The figures on death and injury may therefore be treated as an accurate guide.

10. ​​​​​​​Israel’s conduct frequently violates the International Humanitarian Law (IHL) principles of distinction and proportionality. There is considerable evidence that many of the Israeli Defence Force (IDF)’s attacks on Palestinians in Gaza are indiscriminate. There is evidence of the targeting of journalists, refugee camps, and other specific populations. Analysis of satellite imagery confirms that as many as 177,000 buildings in Gaza had been significantly damaged as of mid-January 2024. According to the British Red Cross, 75% of the population of Gaza is internally displaced and 2.2 million people are now experiencing emergency food insecurity.

11. ​​​​​​​Amnesty International has documented specific airstrikes that were either direct attacks on civilians or civilian objects or indiscriminate attacks, and is calling for them to be investigated as war crimes. Amnesty has documented such attacks from the earliest days of the Israeli assault.  

12. ​​​​​​​The UN Secretary General has said that “no-one and nowhere is safe” in Gaza. The ICRC warns of a “disastrous risk to civilian lives” in Rafah. UN Special Procedures Experts have called for a ceasefire. The United Nations Security Council has repeatedly debated far-reaching ceasefire and humanitarian measures, with texts vetoed by the United States in December and the same expected in the coming days. In mid-December, the United Nations General Assembly passed a resolution by 153 states to 10 on a humanitarian ceasefire and humanitarian access.

13. ​​​​​​​On 26 January 2024, the International Court of Justice (ICJ) issued an order for provisional measures against Israel under the Genocide Convention, finding that a plausible risk of genocide existed. It ordered that Israel cease the following acts: killing Palestinian civilians; causing serious bodily or mental harm to Palestinians; deliberately inflicting conditions of life that would lead to the destruction in whole or in part of the Palestinian people; and imposing measures that would prevent births, such as attacks on health infrastructure. Israel was also ordered to punish incitements to genocide. The situation is under review with Israel required to report on measures taken, but since the decision there is no evidence of a change in Israeli military practice. Rather, ongoing attacks on Rafah and the clearing of land on the Egyptian side of the border indicate an intensification of operations and the plausibility of further violations in the form of forcible population transfer. The order is highly significant: the ICJ has only issued provisional measures under the Genocide Convention in three other cases: in relation to the Bosnian genocide; against the government of Myanmar for genocidal acts against the Rohingya; and in response to the Russian invasion of Ukraine. As explored in paras 24-28 below, the activation of measures under the Genocide Convention implicates all states, who must take measures to prevent constitutive acts of violence.

L3 Harris Release and Integrated Solutions: Gaza

14. ​​​​​​​L3 Harris Release and Integrated Solutions manufactures bomb racks and weapons release cables in Brighton as part of the global F-35 Joint Strike Fighter programme. It does so under subcontracts with US company Lockheed Martin, which manages the F-35 fighter aircraft programme. L3 Harris is one of more than 70 British companies covered by the UK Government’s Open General Export License (OGEL) for the F-35. 

15. ​​​​​​​L3 Harris Release and Integrated Solutions also owns the rights to the VER-2 bomb rack. The VER-2 is now manufactured in Israel, but as ‘design authority’ L3 Harris Release and Integrated Solutions must sign-off and certify any new weapon integrated for use with the Israeli F-16 VER-2.

16. ​​​​​​​Israel is using its F-35 and F-16 aircraft, among others, in the attack on Gaza. Therefore, it is safe to assume that Brighton-made components are being used by the Israeli Air Force in the current war. In previous rounds of conflict the UK government has confirmed that UK-supplied components were “almost certainly” used by the Israeli military e.g. during Operation Cast Lead in 2008. 

17. ​​​​​​​In sum, it is entirely likely that Brighton-made components are being used by Israel in Gaza in attacks that may well violate international law. 

L3 Harris Release and Integrated Solutions: Yemen

18. ​​​​​​​Gaza is not the only place where Brighton-made components have been used in plausible violations of international law. L3 Harris Release and Integrated Solutions also make the bomb release cable used in the Tornado and Typhoon aircraft flown by the Royal Saudi Air Force and used in their bombing campaign on Yemen. By the end of 2021 UNDP estimated that the war had killed 377,000 people in Yemen, directly and indirectly – through air strikes but also siege, and resultant malnutrition, dehydration and disease. 

19. ​​​​​​​A 2018 report from the UN Panel of Experts on Yemen (p.267) provided photographic evidence of a Brighton-made component found at the site of an airstrike on a civilian factory in September 2016. The panel concluded that the strike could only have been carried out by the Saudi coalition and that it was unconvinced that the coalition had respected the IHL principles of distinction and proportionality. 

20. ​​​​​​​On learning this news, 33 Brighton and Hove City Councillors wrote to the Defence Secretary calling for an inquiry into the incident and urging the government to suspend the company’s arms export licences while it investigated.

Public opposition to the L3 Harris factory 

21. There is significant and long-standing public opposition to the L3 Harris factory presence in the city, under its current name and its former name of EDO MBM. From 2004 to 2014 a campaign to shut the factory down resulted in weekly demonstrations, rooftop protests and blockades. In 2009, in response to Israel’s Operation Cast Lead, which killed over 1300 Palestinians, including more than 300 children, a group of activists ‘decommissioned’ the factory on 17 January 2009, breaking in and causing up to £500,000 of damage. The activists were arrested, prosecuted and finally acquitted in 2010 by a Hove crown court jury who found that their action was lawful.

22. ​​​​​​​There are currently 647 comments on the Council portal regarding the planning application, almost all of which are opposed – and include the opposition of two local MPs, who have received considerable correspondence from their constituents. There were also more than 100 physical letters delivered to the Council in opposition. As part of the decision-making process, the Council presumably needs to have due regard to the level of public opposition and the risk of disruption by ongoing protests against the company. 

L3 disrespect for the planning process

23. ​​​​​​​L3 Harris had to be approached by Council enforcement officers after the expiry of the temporary planning permission in September 2023. It would set a poor precedent to allow a company to build something, apply for temporary permission, then ignore it and retrospectively apply for permanent one.  

24. ​​​​​​​The 2018 planning decision was that the extension had to be demolished at the end of 2023 because it was not fit for a permanent purpose. It is unclear from the planning application how the extension is now fit for purpose.  

​​LEGAL MATTERS

International Court of Justice ruling 

25. ​​​​​​​The International Court of Justice (ICJ) has confirmed there is a plausible risk of genocidal acts of violence being perpetrated by the IDF in Gaza, a risk of irreparable harm to the rights (including the right to life) of Palestinians in Gaza, and that a case against Israel will proceed to a full consideration at the ‘merits’ stage. The UK state has signed up to the Genocide Convention and the Convention is ‘erga omnes’ international law, meaning that all states have obligations to prevent breaches, regardless of their relation to the commital of genocidal acts. Complicity in genocide is a punishable crime under the Genocide Convention (Article III(e)). Failure to prevent genocide is likewise a liability for states. For obvious reasons, the provision of military equipment despite knowledge (or recklessly disregarding knowledge) of the likely harms would credibly indicate complicity.

26. ​​​​​​​In recent weeks other states have taken concrete action against arms exports to Israel, with explicit reference to the ICJ ruling. In the Netherlands, the Dutch appeals court ordered the government to halt all exports of components for F35 warplanes to Israel within seven days, given the risk of them being used in violation of international humanitarian law. In Belgium, the Walloon regional government has refused export licences for ammunition to Israel. Japanese company Itochu has ended its collaboration with Israel’s largest arms company, Elbit. Before the ICJ ruling, Spain had already suspended arms exports to Israel since 7 October.

27. ​​​​​​​All public bodies within the UK state, which includes councils, have to consider their obligations under the Convention to prevent genocide. If Brighton and Hove City Council is minded to grant this planning application, despite the overwhelming public objection to it, we recommend that councillors seek legal advice about the risks they are imposing on the Council in relation to potential future litigation about their support of, or lack of preventative steps for, genocide. 

28. ​​​​​​​Crucially, the Genocide Convention is not the only relevant legal consideration for the UK state. Acts which fall short of the ‘intent’ threshold in the Genocide Convention may still constitute war crimes and/or crimes against humanity. War crimes and crimes against humanity are generally included with genocide as ‘jus cogens’ international law, the most serious breaches, “accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted”. An investigation by the Prosecutor of the International Criminal Court (ICC) into crimes in the Occupied Palestinian Territory is ongoing, and now includes allegations of crimes since 7 October 2023, encompassing war crimes, crimes against humanity and genocide. The contribution of Council decisions to a chain of events contributing to war crimes and crimes against humanity would also contradict the established policies of the Council.

29. ​​​​​​​We recommend that the Council seek the opinion of Blinne Ní Ghrálaigh KC, one of the barristers instructed by South Africa in the ICJ case, on the risks the Council is choosing to put itself under. Blinne has been privy to the entire dossier of evidence and will be able to advise. 

UK Strategic Export Licensing Criteria 

30. ​​​​​​​UK arms exports are regulated by the Strategic Export Licensing Criteria, as amended on 8 December 2021. There are 8 criteria; the most relevant here are Criterion 1 and Criterion 2. Criterion 1 states that “The Government will not grant a licence if to do so would be inconsistent with, inter alia: … b) the UK’s obligations under the United Nations Arms Trade Treaty.” Article 6(3) of the Arms Trade Treaty states that a State Party shall not authorize arms transfers “if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” Article 7 of the Arms Trade Treaty states that if there is an overriding risk of arms being used to commit or facilitate a serious violation of international human rights or humanitarian law, their export will not be authorized.

31. ​​​​​​​Criterion Two of the UK’s strategic export licensing criteria states that “Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, the Government will: … c) Not grant a licence if it determines there is a clear risk that the items might be used to commit or facilitate a serious violation of international humanitarian law.” 

32. ​​​​​​​UK arms exports to Israel are currently under judicial review in a case brought by Al Haq and the Global Legal Action Network, on the grounds that a decision to continue allowing exports to Israel breaches Criteria 1, 2 and 7. (Criterion 7 states that, in assessing risk, the Government will take into account the risk of undesirable end-use; we do not deal with this in detail here.) In the Summary Grounds of the Secretary of State in response, the government’s position is that Israel has a different view of the scope of its obligations under IHL, and that a State can only be held responsible for breaching the obligation to prevent genocide under the Genocide Convention if genocide is actually committed. 

33. ​​​​​​​Regarding Criterion 1, we recommend that councillors take independent legal advice about the risks they would impose on the Council if they were to follow the government’s position. In particular, since the ICJ have found that a plausible risk of genocide exists, how will the Council justify its decisions should such a ruling on the merits be made? What are the Council’s legal and reputational liabilities should the IDF’s conduct in Gaza be found to rise ‘merely’ to the level of war crimes and/or crimes against humanity?

34. ​​​​​​​Regarding Criterion 2, we also recommend that councillors take independent legal advice about the risks they would impose on the Council if they were to follow the government’s position. In our view, any meaningful interpretation of the commonsense meaning of “clear risk” that weapons sent to Israel “might” be used in a serious violation of IHL would conclude that UK arms sales – in particular of components for the F-35 and F-16 made here in Brighton – would pose such a risk that cannot be mitigated, given the pattern of Israeli military practice.

35. ​​​​​​​The Foreign Secretary’s evidence to the Foreign Affairs Select Committee has led to significant confusion about the UK state’s response. Though the Foreign Secretary seemed to suggest that he had not overruled legal advice, implying that the UK state had not identified a risk of war crimes, crimes against humanity or genocide, it later transpired that the Foreign Office Assessment Unit had expressed “serious concerns” over likely IHL violations by Israel. The preexisting democratic accountability mechanism for UK arms exports – the parliamentary Committees on Arms Export Controls – has ceased to exercise oversight as that role transitions to the House of Commons Business and Trade Committee. At the time of writing there has been no meeting of that Committee – either in full session or non-inquiry – to consider the role of military equipment exported from the UK in IDF operations in Gaza. There is thus a plausible case to be made that the nationalinfrastructure for arms export control is not functional. As the UK state as a whole has responsibilities under international law, it is therefore especially important for the Council to consider its position.

36. ​​​​​​​UK officials are bound by numerous long-standing common law prohibitions around the commission of and complicity in torture and cruel, inhuman and degrading treatment, as well as domestic and supranational human rights legislation and agreements, including but not limited to the Human Rights Act and the European Convention for Human Rights.  It seems at least arguable that the conditions of Palestinians in Gaza and elsewhere in Occupied Palestinian Territory, British Palestinians including those in the UK with family members in Gaza and elsewhere in Occupied Palestinian Territory, may be at risk or have had their rights violated by the acts and omissions of the British government.  For example, Palestinians in the UK and British Palestinians abroad who are watching their government defend the actions of Israel, refuse to ban or otherwise restrict the export of lethal weapons, may be experiencing suffering amount to torture and / or cruel, inhuman and degrading treatment, and / or a violation of the right to family life or indeed numerous other domestic and supranational human rights obligations of the British government.  

Conclusion 

37. ​​​​​​​We provide this information to the Council and Councillors on the Planning Committee to assist in your deliberations regarding planning application BH2023/03236. We are of the view that the Council should not approve the application; should insist on the demolition of the temporary extension; and should take steps to prevent L3Harris Release and Integrated Solutions from operating in the city. 

38. ​​​​​​​We remind Brighton and Hove Council that individual decision-makers have a moral and legal obligation to act morally. Merely following UK government policy is not sufficient to discharge your legal and moral obligations to prevent and/or avoid complicity in genocide or violations of international humanitarian and human rights law.