TUESDAY 10 NOVEMBER 1998

MRS BARBARA ROCHE, DR R HEATHCOTE AND MR A MANTLE

  83. Good afternoon. May I first apologise for us being a little late in getting to you this morning. We hope that this does not interrupt your day too much. The questions we ask may cause you problems today but we shall see what happens. May I say that we are very grateful to you for coming and for making the arrangements whereby some of us were able to visit your offices last week to see the processing of export licences? May I start with the White Paper? What are the chances of a Bill coming out next year which will give legislative effect to those parts of the White Paper for which there is general support and approval? I realise the Queen's Speech is still some time away but it is two and a half years since Scott. The Government has been in power for 18 months. Surely minds must have been made up and draft legislation must be getting somewhere near your desk. Is that the position?
  (Mrs Roche) May I start by saying how much the Department welcomes the inquiry of the Committee and we were very pleased indeed to be able to welcome you and some of your colleagues to the Department to look at the licensing process. We think this is a very good way indeed of getting the message across about what our work is all about and what the work of my officials is about. Before I answer your question may I introduce my officials who are here with me today for the benefit of those members who were not able to get along? Dr Roger Heathcote is the Director of Export Control and Non Proliferation and Mr Andrew Mantle is the Director of Export Control. You asked a question about the White Paper. We produced the White Paper in the summer and as you and your colleagues will have seen it is a substantial document which has elicited a number of responses, some 52 in all. We are considering them all very carefully and we hope to publish the responses very shortly, subject to any requests for confidentiality that those who have submitted responses to us may have made. As to legislation, tempting though it may be to give any timetable, the best I can say is as soon as the parliamentary timetable allows then we do intend to legislate. Of course the reason that we intend to legislate is primarily because the White Paper is a response to Scott, but also because the legislation we are operating within is legislation which was passed in 1939 and clearly we need a revised framework. We are keen to progress but I am clearly dependent on when parliamentary time can be made available.

  84. You really cannot give us an answer and you do not think it is likely to be within the next 12 months.
  (Mrs Roche) I cannot say. It purely depends on the parliamentary timetable.

  85. You are dragging your feet a bit on this, are you not? It has been kicking around for so long. It is not a matter of great inter-party debate. There is a consensus, more than a consensus, an impatience that if we are going to have an ethical foreign policy it has to have teeth at home as well.
  (Mrs Roche) I do clearly understand what you say on this and clearly the new Government have moved very, very quickly indeed. In July 1997 the Foreign Secretary published the new criteria which are the criteria against which we license exports and that was set out very, very clearly to both houses of parliament and that is very clear and very open. We also intend there to be an annual report. Clearly the matters which are in the White Paper are fairly wide ranging, they are detailed and the Government responded very, very quickly and published that. What I would say is that these are complicated matters and certainly it is fair to say in the responses we have had which come from the non-governmental organisations, from industry and from the academic world, some substantial issues have been raised there which we would want to consider carefully and indeed I would also say that you would want us to consider carefully as a Committee. I repeat, as soon—as soon—as the parliamentary timetable allows us, we shall introduce legislation.

  86. What pressure are you putting on the Secretary of State and the Government at the moment to ensure that this will be put in the Queen's Speech sometime?
  (Mrs Roche) All I can say to you is that we regard this as an important piece of legislation but clearly, just as my department is pressing this, so, as we speak, every other single department is saying probably even to other members of select committees, "Yes, we realise this piece of legislation is very important". We regard it as very important legislation which is why, as soon as the parliamentary timetable allows it, we will introduce it. If I may say to you, the criteria introduced by the Foreign Secretary in July 1997 are something which govern the way in which we license, it is the way in which our work is governed and that gives us the right framework. Clearly we are anxious to move forward, but we have to wait for the Government's managers to give us the possibility of having it. You will know as well as I do, perhaps even better, just what the pressures are on the parliamentary timetable at the moment.

  87. May I be clear about the 1997 Cook criteria? Have these now been superseded by this year's EU code?
  (Mrs Roche) They are complementary. You have the criteria and there is a read-across into both things. What the EU code of conduct does is really to say how different Member States in the European Union can exchange information and what hopefully it will stop is one country undercutting another country and also one country seizing a market opportunity because a licence may have been refused for very, very good reasons in another EU state. The EU code of conduct and the Cook criteria, to use your phrase, are complementary.

  88. Where for example the EU code may be more detailed, it would be true to say, would it not, that the latest is the best? The EU code has superseded the criteria in that sense.
  (Mrs Roche) No, we would regard them as complementary. Certainly as far as the licensing process is concerned, my officials, not just my officials in export control but my officials together with officials in the Foreign and Commonwealth Office and in the Ministry of Defence, who are also circulated cases, would be looking at the criteria as laid down by the Foreign Secretary.

  89. The White Paper lists a number of suggested purposes for new legislation, then basically says that these purposes will be set out in secondary legislation. Those perhaps less charitable than myself might ask whether it is not a bit rich to ask parliament to pass an Act saying that powers for controlling exports will be given to the Government for purposes which will be set out in due course? How do you respond to that?
  (Mrs Roche) I respond by saying that what will happen, really for the first time, is that those purposes which will be in secondary legislation will be subject to parliamentary scrutiny, which of course is not the position with the 1939 Act, which really gives the executive pretty unlimited powers; understandable of course in the circumstances of the time—we were in a wartime situation— why that was there. What, of course, the possibility of new legislation will do, is to give parliamentarians the opportunity to scrutinise those purposes.

  90. But not to amend.
  (Mrs Roche) No, but they will be subject to parliamentary scrutiny and certainly as far as looking at the purposes is concerned they will be subject to the affirmative resolution procedure.

  91. You do not believe that the purposes in a sense have been chewed over enough already and that there is an understanding of where we should be going. You do feel it is necessary to leave that entirely to secondary legislation, subject to the kind of criticisms which will be made.
  (Mrs Roche) I am not sure actually that the criticisms will be made. What we will have with new legislation is the overall framework which will be there. Then parliament will have the opportunity to examine in detail, through secondary legislation and by the procedures of the House, the purposes for which we license strategic exports. I actually think that is a considerable step forward from what we have at the moment.

  92. I would strongly agree with that. Finally on the White Paper, there is no explicit reference, as many people have pointed out, to human rights, only to internal repression. I should be grateful for your comment on that distinction. Presumably it means for example that it is not intended to seek to control instruments to be used for capital punishment because although that is in breach of human rights, it may not be regarded as internally repressive in certain circumstances. Why is it that we are not talking about human rights and we are talking about internal repression?
  (Mrs Roche) We would actually regard human rights as encapsulated in that limb of the criteria which talks about internal repression. We regard it as encapsulated in that and that would certainly be my position and the position of the Government.

  93. Considering that the Foreign and Commonwealth Office and the United Nations Security Council are making such a clear distinction that human rights are very specific rights and also a very keen indicator of volatility, do you not believe that it is actually very important that we clearly indicate human rights as a key issue and a key indicator for this purpose as well?
  (Mrs Roche) That is an interesting point. Our aim, when we framed the White Paper, was to put it within the context of the criteria which were announced by the Foreign Secretary in July of 1997 and to align the two. That is why we have used internal repression and that is why we see human rights as being an essential part of that. I do understand the point you are making and certainly it is a point which has been made by a number of NGOs as well.

  94. We have had some written evidence and it was amplified again this morning that defensive equipment such as helmet visors and even shields are covered. Why is equipment of that kind covered? It seems that some people are at a bit of a loss to know why. I can see in certain parts of the United Kingdom the use of head covering material may be seen as a form of assistance in types of gang warfare, but I cannot really see them being applied in an international context.
  (Mrs Roche) I can understand why some people are puzzled by the point. Clearly defensive equipment, when used in the wrong hands, can have an offensive role. For example, one can imagine a situation where you had specially designed military suits for the protection of those engaged in nuclear or biological or chemical warfare and of course they are controlled. If you have defensive weapons being used by people who are using them in a role for example of external aggression or internal repression, then that would quite clearly be wrong and we feel would be against the criteria as announced by the Foreign Secretary. The other difficulty as well is that if we were to go down that route, this would probably bring us into conflict with standards which are also agreed internationally. We are not unique in controlling defensive equipment: it is something which is very similar in other countries as well.

  95. I find that a rather puzzling statement. Surely any state which considered that it might be threatened by nuclear warfare or by chemical warfare should have the right to protect its own personnel?
  (Mrs Roche) Absolutely.

  96. Similarly, any state which may have to deal with riot and civil commotion has the right to give some sort of protection to its police forces. I just think this is surely taking things a little too far, is it not?
  (Mrs Roche) No, I would agree with everything you have said. They may well have a right to it. Our job, as far as the DTI is concerned, in conjunction with our other advisory departments, the Foreign Office and the MOD, is to examine those, to look at the reasons for it. Of course, you are absolutely right, in the majority of cases, nation states are using them for perfectly legitimate reasons, for the safety of their security forces, or their police forces in difficult situations. There is no problem about that. The reason—and this comes back to the reason why the Chairman asked me the question about why export control relates to defensive equipment as well—is because of the point I was making that they do have the ability in the wrong hands to be used in a way which perhaps none of us around this table would support. That is the distinction we would make.

  97. It may be invidious to press you on a specific instance, but it was evidence given to us earlier this morning, the helmets for China. China is a country where your Department has quite rightly been very anxious to promote trade and very successfully so. How can we assume, what possible logic could there be to say you cannot have protective helmets sold to China?
  (Mrs Roche) As you say, I would not particularly want to talk about any one case. May I just say to you that what we do, certainly when we get these things on defensive equipment and sometimes we get applications, for example when it is aid agencies, where we have to have a very, very speedy turnround, is measure everything against the criteria. Obviously we take advice from our advisory departments, we speak to our posts overseas and we try to turn that round. In the majority of cases of this kind there is no problem whatsoever. At the end of the day, and there is probably only a very small number of cases indeed, we believe defensive equipment in the wrong hands could be considered as being used for internal repression or external aggression. I would stress that I am talking about a very, very small number of cases indeed.

  98. There was a case where the licence was refused for something which was going to be sent to the UNHCR. That surely is about as bizarre as you can get?
  (Mrs Roche) As I say, difficult for me to speak about individual cases. May I just say that we get requests which come in which are as diverse as provision for flak jackets for journalists who are covering war zones, or aid agencies who clearly need that. We make sure that we certainly turn round those applications as quickly as possible and certainly on something like that, we would want to make sure we gave a response as speedily as possible. If you are asking me about the overall framework of whether it is right to have export control governing defensive equipment, I would say yes, because in a very, very small proportion of cases, that could be used in a way which would be against the criteria. Of course we are very, very keen to make sure that the criteria are carried out to the full.

  99. Could you send us information about the UNHCR case?
  (Mrs Roche) Certainly; I shall do that.