APPENDIX 10
Memorandum submitted by Saferworld
ANALYSIS OF THE SWEDISH SYSTEM OF PRIOR PARLIAMENTARY
SCRUTINY AND SUGGESTIONS FOR IMPLEMENTATION IN THE UK
1. INTRODUCTION
1.1 Saferworld welcomes the decision of
the Defence, Foreign Affairs, International Development and Trade
and Industry Committees to re-examine the case for prior parliamentary
scrutiny of arms export licence applications.
1.2 The 1998 White Paper on Strategic Export
Controls and the Trade and Industry Committee's subsequent report
put forward three main arguments against prior parliamentary scrutiny
of individual licence applications:
— That it would be "administratively
onerous" and would slow down the decision-making process
for licence applications.
— That commercially and diplomatically
sensitive information could be released to the public, leading
to a loss of competitiveness and creating potential embarrassment
for the British Government.
— That it would set a worrying constitutional
precedent. For example it may give the impression that Parliament
itself would be the decision-making body for granting or refusing
licensing applications.
1.3 In Sweden a system of confidential prior
parliamentary scrutiny of sensitive export licence applications
has been in operation since the mid 1980s. This has had no apparent
impact on commercial or political confidentiality and there have
been no appreciable delays in the licensing process overall given
the selective and limited nature of the cases referred.
1.4 This briefing examines how the Swedish
system operates in practice and suggests how it could work in
the UK. It has been compiled on the basis of discussions with
Swedish civil servants in the Swedish Ministry of Foreign Affairs,
the Inspector-General of Military Equipment and Swedish NGOs.
2. HISTORY
2.1 In order to increase the transparency
in the export of military equipment an Advisory Board on Exports
of Military Equipment was first established by the Swedish Parliament
in 1984. The Advisory Board provided the main parties (Social
Democrats, Conservative Party, Liberal Party and the Centre Party)
with an opportunity to discuss the matters in a permanent forum.
The only political party with seats in Parliament to be deliberately
excluded from the Board was the Communist Party. However by 1990
the feeling was that all political parties with parliamentary
representation should be included in the process. Thus, following
the recommendations of a Royal Commission in February 1996, the
structure of the Board was reformed and broadened to include representation
from the Communist and Green parties, and it was re-named the
Export Control Council to coincide with the formation of a new
independent licensing body, the National Inspectorate of Strategic
Products (ISP).
3. MEMBERSHIP
OF THE
EXPORT CONTROL
COUNCIL
Please refer to the attached diagram (Annex 1)[71]
3.1 The Council consists of 10 parliamentarians,
representing all major political parties, regardless of what opinion
they hold regarding arms exports policy in general (as listed
in table 1). It is convened and chaired by the head of the ISP,
the Inspector-General of Military Equipment (currently Ambassador
Sohlman). The Ministry of Foreign Affairs and the Ministry of
Defence also participate at the Council meetings, with the former
presenting assessments of recipient countries and the latter providing
a defence policy viewpoint. The Council meets about once a month.
4. FUNCTIONS
OF THE
EXPORT CONTROL
COUNCIL
Consultation
4.1 The Council performs a purely advisory
role. The ISP, which is the functional equivalent of the UK's
Export Control Organisation (ECO), is the authority that makes
decisions on applications for arms export licences. Most export
decisions are handled directly by the ISP on the basis of previous
rulings by the Council akin to a case-law system. However any
new matters of principle arising and any sensitive applications
are referred to the Council by the ISP. For example, the Council
would be consulted on exports to new recipient countries and on
exports to destinations where there are current political concerns
(such as licence applications to India and Pakistan).
4.2 Although the majority of cases considered
by the Council are from such referrals the Council itself can
select additional cases for post-licence review (as it receives
regular reports of all licensing decisions made in the past month—see
below). Overall, however, only important or borderline cases are
dealt with by the Council, thereby allowing more valuable time
to be spent on these cases.
Assessment and Advice:
4.3 Each case handed to the Council is considered
in accordance with the government's export guidelines. The guidelines
differ depending on the category of armaments being exported:
"military equipment for combat purposes" or "other
military equipment" (see section 4. Swedish Annual Report
1998).
4.4 In providing advice the Council strives
for consensus but will sometimes make a recommendation based on
majority decision within Council. The Council can request more
details on any of the licence applications it is shown and, where
there are concerns, it can raise objections to the granting of
individual licences. While these objections are in no way binding,
the ISP has never gone ahead with the licensing of exports to
which the Council has unanimously objected. The Inspector-General
of Military Equipment has said that he would be extremely unlikely
to grant licences if half of the members objected.
4.5 After consultation with the Council,
the Inspector General of Military Equipment makes a decision on
a case by case basis. However there is a provision in Swedish
legislation for the ISP to hand over individual export licensing
decisions of a particularly far-reaching nature to the Minister
for Foreign Trade. The Council can also be consulted in the assessment
of whether the Inspector General should hand over a case to the
Minister.
4.6 The Council can also initiate broader
discussions on general export policy to a particular country or
region. The ISP finds these very useful as a means of getting
broad political opinions on future implementation of policy.
Continuous Reports and Stability:
4.7 In addition to regular meetings the
Council members also receive continuous reports on all export
decisions thereby giving them a complete insight into the way
in which their national arms export control system functions.
Moreover by allowing parliamentarians to influence the decisions,
a practice has been established that confers stability on the
decision making process, even though governments may change. The
Inspector General finds this very useful and the consultation
with the Council gives backing and legitimacy to his decisions
and the implementation of Government policy.
Speed
4.8 Prior parliamentary scrutiny normally
takes place at an early stage of marketing. Licenses are issued
at a much later stage when actual physical exports are about to
take place. Thanks to early parliamentary scrutiny and a regular
dialogue between ISP and each separate firm within the defence
industry, there are practically never any denials of a formal
export licence application. As a consequence the actual licensing
procedure works very rapidly by international standards.
Confidentiality
4.9 Each member of the committee has to
sign a statement that they are aware of the confidential nature
of the information they are provided with. This seems to be respected
and as far as the Government and industry are concerned, there
is no appreciable impact on political or commercial confidentiality.
5. SUGGESTIONS
AS TO
HOW THE
SWEDISH SYSTEM
OF PRIOR
PARLIAMENTARY SCRUTINY
OF ARMS
EXPORTS COULD
WORK IN
THE UK
Who would be on the committee and how often would
they meet
5.1 In Sweden the Committee is chaired by
the Inspector-General for Military Equipment, Ambassador Staffan
Sohlman. However, there is a danger that if this model was transferred
to the UK (ie if the head of the exports control organisation
was to chair the committee) it might confuse the relationship
between the executive and the legislature.
5.2 Saferworld, therefore, suggests that
an export control committee could function like a normal select
committee in the Westminster model. It would be comprised solely
of MPs, with party representation in keeping with the proportion
of seats in the House. Civil Servants from the Foreign Office,
Ministry of Defence, Department of Trade and Industry, and Department
for International Development could be called if necessary to
provide background information on licensing policy and the political,
development and security situation in the recipient country or
region. All discussions by the committee, however, would be in
private. The committee could meet once a month while parliament
is in session. Regular reviews of the working and effectiveness
of the system would be important.
What would the committee look at? What would be
the status of their advice?
5.3 At a minimum, the committee could examine
those sensitive licence applications which are referred to Ministers
(approximately three per of the total number of licence applications
or around 200-300 per annum). Ideally, the committee would be
able to see the licence applications before they are seen by the
Minister. The committee's view could then be considered by the
Minister alongside the advice from officials.
5.4 In order to ensure continuity the committee
should also be allowed to scrutinise applications to licence the
export of sensitive equipment which are being considered to a
range of sensitive destinations. And the committee could examine
any proposed licences to embargoed destinations. (In practice
many of these applications would presumably overlap with the licences
which are passed up to ministers.) The committee could amend the
list of sensitive destinations and/or types of equipment on an
ongoing basis, in response to new areas of concern.
5.5 The committee would have a purely advisory
role. If a majority of the members of the committee were to object
to a licence, this opinion should then be passed up to Ministers
for their decision.
5.6 In addition to scrutinising individual
applications, the committee could discuss the general implementation
of Government policy towards particular destinations, and the
application of specific export criteria (eg that licences will
not be granted for equipment which might be used for internal
repression). Any opinions could again be passed onto the Government.
5.7 The committee could also receive a list
of all licence applications granted and refused in the previous
month so that they could monitor the implementation of policy.
Would there be a danger of slowing down the process?
5.8 If the committee is established to look
at a limited number of sensitive licences, there is little cause
to suspect that the licensing process as a whole would be significantly
affected, although specific licences may be subject to some delays.
The committee could be given a specific time-frame to consider
licences, including asking for further information and requesting
an audience with senior officials (or Ministers in exceptional
circumstances).
What about political and commercial confidentiality
5.9 The committee would meet in private
and all information and discussions would be strictly confidential.
The UK select committee which monitors the work of the intelligence
services provides a model of a committee in receipt of highly
sensitive information which remains confidential. There should,
therefore, be no appreciable impact on either political or commercial
confidentiality.
September 1999
71 Not printed. Back
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