Select Committee on European Scrutiny Twentieth Report


TECHNICAL ASSISTANCE RELATED TO WEAPONS OF MASS DESTRUCTION

(21272)

Draft Joint Action concerning the control of technical assistance related to
weapons of mass destruction and certain military end-uses.


Legal base: Article 14 TEU; unanimity
Department: Trade and Industry
Basis of consideration: EM of 5 June 2000
Previous Committee Report: None; but see (21118) — : HC 23-xv (1999-2000), paragraph
10 (19 April 2000)
To be discussed in Council: 13 June 2000
Committee's assessment: Politically important
Committee's decision: Not cleared; further information requested

    Introduction

8.1  On 19 April, we cleared a draft Council Regulation setting up a Community régime for the control of exports of dual-use items and technology[11]. It was expected to be adopted before the end of April and to come into force 90 days later. It will control, among other things, the transfer of dual-use technology by intangible means, such as e-mail and fax. However, the legal base for this revised Regulation is Article 133 of the EC Treaty, under which there is no Community competence to control the movement of persons across borders.

    The proposed Joint Action

8.2  In an Explanatory Memorandum dated 5 June, the Minister for Competition and Consumer Affairs at the Department of Trade and Industry (Dr Howells) points out that:

    "Persons who travel across borders to communicate information or provide expertise, instruction, training etc. may also transfer technology by intangible means, or more generally provide technical assistance as defined in Article 1 of the Joint Action."

8.3  If provision is to be made for the control of forms of technical assistance involving such movement, the Minister says that a Joint Action is necessary. The Portuguese Presidency has, therefore, proposed under the Common Foreign and Security Policy the Joint Action we consider here. It is intended to complement the Council Regulation and will control various forms of technical assistance related to weapons of mass destruction, where that assistance is provided outside the EU. This would apply, for example, the Minister says, where someone travelled outside the EU in order to repair, provide maintenance for or help assemble weapons of mass destruction or missiles capable of their delivery.

8.4  From the unofficial text provided by the Government, we see that the technical assistance will be taken to include the transmission of working knowledge or skills and includes oral forms of assistance. Article 2 subjects this technical assistance to controls, defined as 'prohibition or an authorisation requirement', "where it is provided outside the European Community by a natural or legal person established in the European Community and is intended, or the provider is aware that it is intended, for use in connection with ....". There then follows a list of different types of activities, such as the development of chemical weapons.

8.5  The Joint Action also requires Member States to consider the application of similar controls to the provision of technical assistance on military end-use list items, other than those referred to in Article 2, in countries subject to certain arms embargoes.

8.6  Article 5 calls on Member States to lay down control provisions, if these are not already in place, and to "determine the sanctions to be taken at national level".

    The Government's view

8.7  The Minister says that the substance of the Joint Action is consistent with the Government's proposals for new legislation as set out in its White Paper on Strategic Export Controls (Cm 3989). This proposes to extend controls to the transfer of technology by any means and the provision of technical services related to weapons of mass destruction and long-range missiles. He adds that policy will be reviewed in the light of responses to the White Paper.

    Consultation

8.8  The Minister comments:

    "It has not been possible to carry out consultations on the proposed Joint Action, as the text has only recently become available. There will be opportunities for views to be expressed when the Government introduces measures to implement the Joint Action in due course, if it is adopted. However, the Government's proposals for new export control legislation, which contain proposals in relation to weapons of mass destruction, were set out in the White Paper mentioned above, and were the subject of wide consultation, the results of which were announced before the House of Commons by the Secretary of State for Trade and Industry on 11 November 1998."

    Conclusion

8.9  This proposal is unusual in our experience of Joint Actions, in that new primary legislation will be required to implement it in full, according to the Minister.

8.10  The Minister says that there has been little time for consultation on this proposal, but refers to consultations on the White Paper on Strategic Export Controls as though these were an adequate substitute. He does not tell us whether he has consulted the Lord Chancellor's Department or the Home Office, both of which could be expected to have views on sanctions to be applied to persons travelling abroad. He gives no indication of what sanctions he envisages might be applied and how these would operate.

8.11  We are not content to clear this proposal on the basis of the meagre information supplied, leaving further scrutiny to the measures the Government will bring forward, if the Joint Action is adopted. We need a much clearer idea now, for instance of whether the sanctions would be civil or criminal and would only be applied after the event, or whether the Government would seek to prohibit travel on the basis of a person's intention to supply the technical assistance referred to in the Joint Action. If so, how will this be monitored and enforced? We also ask the Minister whether the Joint Action is intended to thwart 'brokering', where technical assistance is provided outside the EU which would otherwise be subject to internal controls.

8.12  The Minister tells us that the proposal is due to be "considered" at the General Affairs Council on 13 June. We do not expect the Government to agree to this Joint Action before it has responded to our questions on the concerns it raises. Meanwhile, we shall not clear the document.


11  (21118) -; see headnotes to this paragraph. Back


 
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