Prior scrutiny
82. There has been considerable discussion of
the possibility of introducing some system whereby Parliament
would engage in scrutiny of applications for strategic export
licences before they were granted, described as "prior scrutiny".
In response to the 1996 Green Paper several NGOs called for the
introduction of prior scrutiny, possibly linked to a public register
of applications, allowing general access and giving anybody concerned
an opportunity to express a view on any licence application. The
July 1998 White Paper announced the Government's decision that
there should not be "parliamentary scrutiny of individual
applications either before or after the decision on whether to
grant a licence has been taken". No attempt has been made
in the course of our inquiries to sustain the untenable proposition
that Parliament should not scrutinise the decisions of the Executive.
The issue of prior scrutiny however remains open.
83. Both the Trade and Industry and the Foreign Affairs
Committees have already expressed their general views on prior
scrutiny. The Trade and Industry Committee pronounced itself satisfied
"at this stage" to "continue to leave individual
decisions on export licences to Ministers, who are accountable
to Parliament, in accordance with constitutional conventions".
It noted that it would be unusual for casework of this sort to
be seen in advance by Parliament; that there was a danger that
Parliament could be presented as having tacitly endorsed an application
laid before it and not commented upon; and that "on the sort
of hard cases referred to in oral evidence to us we doubt if it
would be helpful to have a formal parliamentary input prior
to decisions".[156]
In its Report the Foreign Affairs Committee set out further arguments
against prior scrutiny, in particular the potential adverse effect
on the UK defence industry, but also noted that the system in
operation in the USA did not appear to have damaged the ability
of companies there to export.[157]
In evidence to us in November 1999, the Foreign Secretary sought
to discourage any system of prior clearance on the grounds that
it would introduce a very substantial delay into the licensing
process which was already failing to meet its turnaround targets
without the added complication of delay.[158]
Saferworld provided in response to our request a detailed account
of the system of prior scrutiny in operation in Sweden, already
referred to in earlier evidence to the Trade and Industry Committee.
BASIC provided details of the system of US congressional scrutiny
of licence applications above a certain value. In its November
1999 submission, the DMA set out its concerns at the prospect
of prior scrutiny.[159]
84. We decided to inquire at first-hand into the
Swedish system of parliamentary scrutiny. An edited version of
the note prepared following the visit is published as an Annex
to this Report. Our visit to Sweden suggested that the system
in operation there could not readily be translated into a UK parliamentary
context. The Swedish Export Control Council is an advisory body,
composed of serving or former parliamentarians representing the
political parties, established to provide the independent official
responsible for export licensing (the Inspector-General of Strategic
Products) with a political sounding-board, and to create a private
forum where all-party consensus can be reached on delicate issues.
Only a limited number of requests from exporters for pre-licensing
opinions ( the equivalent of the Form 680 procedure in the UK)
are referred to the Council, at the discretion of the Inspector-General;
he will in many cases have already given his opinion. Council
members express individual views on the opinion the Inspector-General
should give on those cases he has referred to it. The Inspector-General
then comes to a view. Major decisions are remitted to the collective
decision of Ministers. The Council does not report to Parliament,
and is not a parliamentary body. There are other conventional
mechanisms for parliamentary scrutiny. Parliamentary committees
can and do scrutinise an Annual Report not dissimilar to the UK
Report, and individual Members can pursue particular issues by
question and debate. While the system has several strengths, our
analysis of it strongly suggests that the lessons that can be
drawn from it for the UK are circumscribed by the extent to which
it is the product of a different historical and constitutional
context. We intend to seek further details of the practical operation
of the US system.
85. The case for parliamentary prior scrutiny of
applications for strategic export licences stands or falls on
a judgement as to whether licences for arms exports are, for whatever
reason, deemed to be a sufficiently distinct category of Ministerial
decision as to justify reversal of the normal constitutional pattern,
whereby Ministers make decisions on "casework" and are
accountable for their decisions after they are made. If that is
indeed the case — and there are many who see strong arguments
in favour — then we are satisfied that it is well within
the grasp of human ingenuity to devise a satisfactory system of
prior scrutiny. Our examination of some of the practical objections
made suggests that some are more imagined than real. There are
however some serious challenges; the demands that any worthwhile
system of prior scrutiny would put on those involved cannot be
lightly dismissed. There are a number of fundamental issues of
parliamentary practice and procedure which will have to be faced.
We expect to gain some further insight from a greater understanding
of the practicalities of the system of prior scrutiny in the USA.
At this stage we would not want to rule out either the practicality
or the possible desirability of prior parliamentary scrutiny of
export licence applications. We will seek to come to conclusions
on this issue in our next Report.
155 Wiring It Up,
January 2000, page 56, Conclusions 28 and 29 
