Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. You represent the UK Working Group on Arms. You have very kindly sent us the most informative memorandum, which will be the basis of this morning's discussion, generally speaking. My colleagues are going to begin with what I think is in a sense the ground-breaking part of the draft Bill, and that is the schedule of purposes. This is going to be the first time in legislation that there is going to be listed a series of purposes for which orders preventing exports taking place will actually be put into legislation. I wondered about a point that you have not raised particularly in your memorandum, which strikes me and colleagues. Whereas orders can be made under the Act and are going to be part of the statute, the actual licensing process, which is really the main instrument, is going to remain non-statutory, as well of course as the code of criteria and other guidance are not going to be made statutory. I know we will come on to the issue of whether the Code should be written into the schedule but do you have any comment on the fact that the licensing process is not going to be put on a statutory basis? You do not actually mention it in your memorandum?

  (Ms Meek) I think it is something we have considered in our reply to the QSC. I think we looked at it from two perspectives. One was that in the consultation paper the government has referred to the fact that a licence that was issued contradictory to the purposes would in fact make null and void that licence. So I suppose we have to allow a degree of interpretation in the carrying out of this, but for us it is also very closely linked, as you have mentioned, with the issue of the export criteria and whether you put the export criteria on a statutory basis, and perhaps there might be further questions on that.

  2. You feel reasonably content therefore that because the schedule is going to be on a statutory basis, that is a sufficient safeguard?  (Ms Meek) With some amendments.

  3. Yes, with the amendments that you are going to propose.  (Ms Meek) Yes.

  4. That is agreed. Let us get on to the point that you would like to put other things into the schedule, in particular the code of conduct?  (Ms Meek) Our concern is quite simply that it looks like we are putting forward two sets of language. We have the consolidated national EU criteria that is government policy and then we have now in the purposes a separate set of language, which is not contradictory to the code necessarily but it is not completely complementary to the code. We would like to see explicitly references in the purposes to the code criteria 3 and 7, which are the internal situation as 3, and 7 is the risk of diversion. The government makes this point in its consultative paper when it is discussing options for licensed production overseas; it talks about the risk of diversion. We feel that the risk of diversion is one of the fundamental issues that needs to be addressed. I think we are still debating to a degree, and we apologise for that, how best to put the export criteria of the code of conduct on to a statutory footing. If it was to go through orders, we recognise that the government would object to that on the grounds of rigidity. Perhaps we could get into an appeal process through the courts of law that we would be hesitant to see developed as well. Our overriding concern is that these export criteria are not simply up to each government to make part of its policy but that there is some way that each successive government is also required to abide by the principles in the code of conduct. We are perhaps in a bit of a conundrum about how to proceed.  (Mr Crowley) May I elaborate on that? I think it is right also to say that we welcome the explicit inclusion of human rights as opposed to strictly internal repression in the consequences of the Act. That is a new addition which we welcome. Picking up on what Sarah has said about the need to expand and clarify what is in the primary legislation, it is very important that there is a determination and an explanation of what international humanitarian law and aspects and what human rights standards and norms are going to be used for licensing determination. Basically we believe that in its licence determination the government must ensure that there are no transfers of goods which are likely to be used to breach international humanitarian norms and standards and human rights norms and standards. Specific UN criteria that should be included in such determination are: UN-basic principles on the use of force by firearms by law-enforcement officials; the UN code of conduct for law enforcement officials; the UN Convention against Torture; the UN International Covenant on Civil and Political Rights and the Universal Declaration on Human Rights.

  5. Are you suggesting that all these be written into the schedule?  (Mr Crowley) Not into the schedule but the fact of international standards on human rights and humanitarian law should be written in and then an explanatory text either in secondary legislation or in the government criteria is needed.

  6. Do you not think that if you look at the schedule, paragraph 2(b), any other international obligation would sweep up the points you are making?  (Mr Crowley) I think that sweep-up phrase might work very well but there are key texts which would be useful to reference specifically.

  7. By specific identification often you can exclude others. You have to be careful. That is a good catch-all provision.  (Ms Saunders) I would like to say a word about the sustainable development criteria. Obviously it is extremely welcome to see this in the schedule here but I think the criteria have to be at the heart really of the new regulatory system. Looking at what is actually in the EU code on this particular language, it would be very useful if we looked at some of the language in the EU code and considered if it could be used to improve the language here. In particular, the EU code has a very short phrase about striking a balance between the interests for development and the military needs of the country. That short phrase, which is no longer what we have here, would be a very useful alternative text. It would mean that there was harmony between what we are saying at the EU level and putting in UK legislation.

  8. You want consistency between the schedule and the Code of Conduct on sustainable development?  (Ms Saunders) Yes.

  9. On human rights, and we noticed this too, of course the reference there to human rights is about the transfer of weapons or arms which might actually assist internal repression or contribute to that, not the general human rights record of the country concerned. That has been a distinction we have had running right through some of our earlier reports and it drew attention to that. You would want in this case the schedule to be again a catch-all human rights provision rather than one linked to the issue of internal oppression. Is that right?  (Mr Crowley) The basis that has to be in the schedule is: are these arms or is this security equipment likely to be used to facilitate human rights violations? It is that link that is crucial, but when officials and ministers are determining whether a licence will be granted or not, they have to bear in mind what is the human rights situation in the country, and that is partially determined by what national controls there are on law enforcement officers and whether they abide by international standards. The actual determination has to be on the basis of: will these arms be used to facilitate human rights violations?

  10. Let me give an illustration. That would still allow a country with a poor human rights record to be able to purchase arms and for arms to be licensed if they were for the defence of the territorial integrity of that state?  (Mr Crowley) Yes, absolutely.

  11. You would accept that, would you?  (Mr Crowley) If they are not going to be used or are unlikely to be used to facilitate human rights violations; it is a judgment or a decision by ministers and officials. You have to weigh up the human rights situation as reported to you by human rights organisations, journalists, the UN and your own embassy, as to what the situation is on the ground and, in the light of that information, make the determination.  (Dr Davis) There is also the consideration of the type of equipment being exported and the end user of the equipment. These factors balance the decision. If it was equipment specifically related to the use in torture or whatever and, if, for example, it was small arms and light weapons which can be used, these considerations can be taken into account. It is not just the end user; it is a combination of the type of equipment and the end user.

  Chairman: Unless my colleagues have any more questions on schedule, I will turn to brokering, which is the main part of your submission.

Mr O'Neill

  12. Reference is made to brokering in paragraph 59. The question is whether or not it should cover UK nationals when they are living abroad. I am not very clear as to how you enforce such a provision. If someone was living in Gibraltar there might be a bit of arm-twisting in, as it were, the British diplomatic community. But let us say that the individual chose to operate out of Bulgaria; it may be rather more difficult there. Is it really worth our while having provisions which we cannot enforce because we could perhaps end up like the United States with weak, empty, hand-wringing kinds of gestures. How do you address this problem because it is a real one?  (Dr Davis) We certainly welcome the proposals on arms brokering and they go further than the original White Paper consultation. Clearly the measures that are current now go some distance towards closing down the operations of unscrupulous individuals and companies, but if you do not take full extra-territorial measures, we feel that the danger is that British citizens will just simply evade the controls by simply stepping into anther country, and you gave the suggestion of Gibraltar or to Bulgaria. So the brokering legislation, as we see it, is severely compromised by the fact that we do not have this currently laid out fully for the extra-territorial question. There are several aspects to the question of policing. Firstly, by criminalising this process, you are putting this forward as a deterrent to deter individuals from doing it. This is certainly the experience, having discussed this issue with American officials. As you say, the situation in the United States is fairly weak but there has been a number of prosecutions. The suggestion is that it does act as a deterrent simply by having the legislation on the statute books. Secondly, we need to see trafficking of arms in the context of wider issues to do with trafficking of other illegal goods, the trafficking of humans and of drugs and the increasing co-operation that is taking place against organised crime through groups like Interpol and the increasing use of joint intelligence operations. I think it can be enforced at the international level through greater co-operation in policing. The required evidence will be collected in the course of collecting evidence against other forms of trafficking. As I say, this is implicitly tied up with organised crime activities.

  13. Do you have any evidence of a hard kind of a sizeable number of successful convictions being prosecuted by the American authorities on their own citizens?  (Dr Davis) As far as I am aware, there have not been any successful prosecutions so far. We know that in the last three years they have issued licences to some 200 applications and that they have investigated two or three cases a year. As far as we are aware, there have been no successful prosecutions. They strongly refer to the deterrent role that it has.

Mr Cann

  14. Could you tell me the name of any particular dictator or tyrant who has not been able to access weapons against his own country?  (Dr Davis) I think there are clearly cases, if you look at where the situation is usually so severe that, for example, an arms embargo has been applied. There are often discussions about arms embargoes not being successful and that weapons get through to the intended destinations. In most examples where arms embargoes have been applied, the access of weapons has been delayed and slowed down and the international community is sending out a message. There are examples of this.  (Ms Saunders) That is not really the point. In a sense you are right. As far as I know, there has not been a case where a dictator has failed to get hold of weapons. The last thing we want is for him to get hold of British weapons or weapons that were facilitated by British brokers or shippers. I would hope that this is what we are here today to try to do. We are after a system whereby we can tighten up controls so that that does not happen because it has certainly happened in the past. In Oxfam we see people being shot every day by weapons that certainly are from British sources or are sent there by British brokers. We are here today to try to encourage this process along. I am sure it is why many of us are gathered here. I would agree with you: yes, that is the problem and we have to try to do something about it.

  15. What you are talking about is a moral proposal, not a practical one?  (Ms Saunders) It is a question of life and death. If that is moral, then it is moral.

Mr O'Neill

  16. You refer to shipping and you have said that you would like British shippers to be subject to control. How do you think our export licence system, decrepit though it may be, would cope with the issuing of licences to British shippers to ship between two foreign countries?  (Dr Davis) You have to look at that question in the context of the general liberalisation that has taken place in the export control system in the UK. The DTI's own figures suggest that the percentage of total UK exports covered by the existing rules is something like 5 per cent. Within that 5 per cent, there have been additional liberalisation controls; for example, greater use of open licences and general licences. If you went back to the mid-1980s, for example, there were something like 90,000 individual export licences considered by the DTI in one year. Now they consider something like 10,000 to 12,000 individual licences a year. This is part of the export control philosophy that is now applied which is about higher fences around fewer goods. We think that extending controls to brokers is part of that philosophy. In the US system they have had something like 200 licence applications over the last three years. In Germany they have had 10 to 15 licences a year. We have talked to shippers and, as far as we can work out, there are probably between 20 and 30 shipping agents in the UK, so we are not talking about a terrible burden on the licensing system.

  17. So it is not a burden because it is not very many but, if it is not very many, do you need legislation which, by your own admission, you know will be shot through in pieces because it is virtually impossible to enforce?  (Dr Davis) I do not think it is impossible to enforce. As I said, I think it can be tied into existing enforcement in other areas. In this day and age, with the other ordinary export licences, the enforcement is not just at borders and about Customs; it is about intelligence operations and co-operation with other countries. This co-operation already exists in the context of other efforts to control other illicit goods and trafficking of humans and in the context of organised crime we work very closely with groups in Interpol. You cannot begin to enforce something until you have criminalised it.

  18. What I am concerned about is that, even if you did criminalise it, the chances of you catching the people is very small. Would we be spending disproportionate resources on that rather than focusing attention on more important things? I do not disagree with your objectives but you are into the area of the best being the enemy of the good.  (Dr Davis) I think this is a priority area on which we should be concentrating resources. There has been lots of evidence since the Mil Tec case in 1994 on arms to Rwanda, Saferworld and other organisations here can come up with numerous examples of British citizens involved in arms trafficking. It is this type of trafficking which gets the weapons to the conflict zones; these are particulary small arms type weapons. We feel that for the UK Government this is a priority area and I think the UK Government has indicated that it is a priority area by the fact that it is taking a lead in trying to negotiate an international convention in the Untied Nations and within the European Union.

  19. Would you draw a distinction between shipping and brokering or do you lump them together? I know they are together in your presentation. Would you say that one was as important and as possible to control as the other? There is always the danger of discrediting legislation by putting in things that we cannot always achieve easily or effectively and therefore the whole piece of legislation becomes discredited as a consequence?  (Dr Davis) Our view is that you should try and include them both. For example, by the wording in the Firearms Protocol, which talks about controlling activities of delivery of movement: for us that could be seen to cover both shipping agents and brokers. It would depend on the exact nature of the wording of the legislation. We feel that it could be worded to cover both types of trading, again given the numbers involved. In fact there is already a certain amount of regulation that involves shipping agencies; for example, they need to be registered to allow them to carry firearms in the first place. We think there is sufficient scope in legislation for that to happen.  (Ms Meek) I think there are three stages, and I will be very brief on this point. The first is that what we are trying to do is essentially put in place the powers so that when a situation at one level arises, you have the ability to respond. That is one purpose for which we are here today pushing for the inclusion of brokers and shippers in this process. The second is a preventative measure, as Ian put very well, which is to try to act as a deterrent to prevent future violations. The third is to keep up with the emerging international situation. The United Kingdom has been at the forefront of negotiating the Firearms Protocol and is under an obligation to consider regulations on brokers. The definition of illicit trafficking includes the delivery and movement of goods. This is where the UK is going to have to put its attention. It should be using the opportunity before it to do that.

  Mr Cohen: In your presentation you make the point, with which I am very sympathetic, that the controls in this area must extend to the activities of all UK passport holders, even if operating wholly on foreign soil, but you also make the point that unscrupulous arms brokers are past masters at creating a series of shell companies and computer paper trails in many jurisdictions. How do you see the legislation reaching Mr British Unscrupulous Arms Dealer if he is operating through a shell company that has been clouded out on a Caribbean island somewhere? Do you think that needs to be tightened?

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