Select Committee on Foreign Affairs Third Report


Letter to Rt Hon Robin Cook MP, Secretary of State for Foreign and Commonwealth Affairs from Ted Rowlands MP, Chairman of Quadripartite Committee

The Committees met last week to discuss the Government's Response of 9 December to their July Report and the debate held on 14 December in Westminster Hall, to which Peter Hain replied.

We cannot of course accept the proposition advanced in the very last sentence of the Response that there can be no role for Parliament in scrutinising the way in which Ministers propose to use delegated powers it has conferred on them. I have no doubt that Members will wish to raise this issue of principle in oral evidence with you on 30 January.

In the light of the almost universal support expressed in the debate for prior parliamentary scrutiny, and of the assurances given by Peter Hain that Ministers would be open to a more detailed set of proposals and would "examine very seriously any further proposals, representations or deliberations that emerge from the Committee", we decided to see if there were any clarifications or modifications of the scheme for prior parliamentary scrutiny set out in our July Report which could meet the practical objections raised in the Government Response.

We propose to go through the objections as set out in the Response to our Recommendations 22 to 24, as set out on pages 10 and 11 of Cm 4872, paragraph by paragraph.

There can be no basis for the suggestion in the second paragraph that consulting a parliamentary committee prior to taking a Ministerial decision on a licence might cause legal problems. In paragraph 88 of our Report, we stated plainly that "responsibility for strategic export decisions will continue to lie wholly with the Government". The statutory powers of Ministers are therefore unaffected by our proposals.

The fourth paragraph sets out the concern that the prior scrutiny system we proposed might lead to "considerable" delay, and thus undermine the competitiveness of UK industry in overseas markets. We have of course been very conscious of this issue, and in our Reports have been critical of the interminable delays which exporters too often experience at present.

We have however repeatedly stressed that it would only be in a small fraction of cases that Stage 2 notification would be required. For the vast majority of these, further factual information provided to the Committee while the applications were being scrutinised by the departments - for example, on end-user or quantity - would lead to the Committee "clearing" them as no longer requiring notification. That would leave a very small handful of licence applications of which the Committee would wish to be notified when it was intended to grant a licence.

Experience suggests to us, as it must to you, that such cases will also be among those which will have certainly have been examined for months rather than weeks, and that they will almost certainly be cases in which Ministers have been involved. In the case of the Zimbabwe aircraft spares, for example, the decisions took many months. The idea that in a few such cases a maximum extra period of 10 working days would make a difference is simply untenable. We are however happy to reiterate that, as is set out at para 88 of our Report, "national security and operational considerations may make it impossible for the Government to comply with the prior scrutiny procedure in every case". What we are proposing closely parallels the terms of the so-called "scrutiny reserve" operated by the European Scrutiny Committee under the terms of a Resolution of the House .

The fifth paragraph deals with the question of the confidentiality of Stage 2 notifications. We stated that we hoped and expected that the Government would be able to be as open as the US Government in making notifications. While we support the principle of transparency as demonstrated by the US system, we accept that there are features of the US system which make comparison difficult, including the existence of a high value threshold in the US system. We recognised in paragraph 86 of our Report that there might be good reasons to make Stage 2 notifications in classified form. We would therefore be happy to undertake discussions with the departments concerned to reach agreement on how best to proceed.

We cannot however accept that the danger of damaging bilateral relations with a country can be sufficient reason not to engage in debate on the merits of exporting goods to that country, as suggested in the last sentence of the fifth paragraph. In the rare event of the Committee considering that a proposed licence was of such significance as to merit debate in Parliament, we do not think it can be seriously suggested that the sensitivities, real or imagined, of the intended recipient should weigh heavily in the balance against the need for democratic accountability for such important decisions.

The sixth paragraph seeks to protect "advice given to Ministers" and the details of interdepartmental discussion. You candidly admit that we did not ask for such material. It goes on to suggest that the Committee will need "access to sensitive and technical advice on the nature of the material covered" and detailed advice on the proposed destination or end user.

That is true to some extent. The operation of prior scrutiny would indeed depend on the development of a modus operandi on the supply of technical clarification of the material for which a licence is sought. Much of this is provided by the intending exporters, who have told us of their frustration at how little use seems to be made of it. The Committee would also of course seek on occasions to know the identity of the end-user; this hardly constitutes advice to Ministers. In both cases, there has been no evident problem with the provision of information on either the nature of the material or the end-user when we have sought it in the course of the past eighteen months.

We are grateful for the offer of confidential briefings, and will consider if there are areas where this might be of assistance, perhaps in the light of the oral evidence you are to give on 30 January.

12 January 2001

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