Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 160 - 179)



  160. For example, would some of the Iraq decisions have gained from being subject to the judicial review procedure?
  (Ms Baxendale) It is very hard to see how at the time. I can understand why judicial review was not brought at the time because, first of all, life has moved on since then but also under the Act it was very hard for anyone to challenge the decisions. In the time that has passed since the mid 1990s, early 1990s, I think the public and contractors are much more aware of how they should ask the decisions and they should ask for reasons whereas before there was more of an acceptance. Also, because of the purposes that are set out in the Schedule, it is less likely, I would hope very unlikely, that you will have the kind of decisions being taken for reasons that are not necessarily what one might expect if you were the exporter.

  161. Can I just return to the point Mr Viggers was pursuing with Lord Scott. We have in the Schedule the list of purposes. For example, a government—let us take something quite recent in our minds, the sort of growing abuse of human rights on farms in Zimbabwe—if they thought that as a response to that situation it should refuse licences for arms to the Zimbabwean Government, that currently would not I think fall within the present Schedule purposes. That would be what Mr Viggers was calling a general foreign policy point as opposed to a specific purpose. The Fatwa and Bazoft examples would be other illustrations. Do you think the Schedule purposes should include a provision that would allow this type of decision to be taken?
  (Lord Scott of Foscote) I think it is quite dangerous to include a purpose of that sort because it would be very difficult to limit it. Looking at the purposes that are there, I suppose the nearest one gets to it would be D(d) but then there would not necessarily be a connection between the arms and the human right breaches with regard to the farms that one would be talking about.

  162. You would not argue selling Hawks to the Zimbabwe Government was directly related to the issue of abuse of human rights?
  (Lord Scott of Foscote) I suppose that is the sort of area which might lead to a decision by government to have an ad hoc addition to the purposes brought about under the power conferred by the proposed Section 3(2).

  163. I see. Right.
  (Lord Scott of Foscote) In which case there would have to be affirmative resolution procedure and both Houses of Parliament would have to approve it.

  164. Ms Baxendale has prompted me to ask the question. 3(2) is a curious provision, seemingly so. It is a temporary right to oppose licences outside the Schedule.
  (Lord Scott of Foscote) Yes.

  165. I was wondering did you think that was too wide or do you think that with the affirmative resolution—the temporary nature of that—that actually is a sufficient safeguard?
  (Lord Scott of Foscote) I think it is fine with the affirmative resolution procedure. Parliament is in control as Parliament ought to be.

  166. Ms Baxendale, any views on 3(2)?
  (Ms Baxendale) Perhaps I am slightly less sanguine.

  167. Could you explain how?
  (Ms Baxendale) I am concerned about the examples given by Lord Scott in his recommendations of times when there seemed to be a confusion between using foreign policy requirements against individual exporters. It does seem to me those kinds of examples come within the kind of emergency that Government might see and might want to use 3(2) for. It is very difficult. The affirmative resolution procedure should be a guard against misuse but I may be slightly sanguine.

  168. You are uneasy?
  (Ms Baxendale) I certainly am uneasy about 3(2).

   Chairman: The other area which you recommended which has not been pursued and has not gained a great deal of support, if I may say, in quite a lot of the evidence we have received is the way in which you wish to build the administrative procedures in on a statutory basis.

Mr Cohen

  169. I can claim a small input into your Arms to Iraq inquiry. I think it was The Guardian which described my question to the Prime Minister as the "grassy knoll" in the issue of whether the policy had been changed or not. I want to pick up on administrative procedures. You did suggest putting a number of administrative procedures for licensing on a statutory basis. The response that we have had clearly here with the consultation on the Bill is not to do that really, it is a mixture of secondary legislation and guidance. Are you happy with that?
  (Lord Scott of Foscote) Not very, no. I think it would have been better if it had been put on a statutory basis. I think also—and I must acknowledge my indebtedness to Ms Baxendale for making the comment about it which prompts this remark—that since the Human Rights Act 1998 came into effect it is very important to have procedures in place for deciding issues and appeals which are capable of being defended as being fair. The rather ad hoc appeal procedure which was in place in the period I was looking at for the purposes of my report are, as I understand it, going to be continued without any radical changes and without any particular thought given to what conceivable challenges to those procedures might be raised. I think that is something which the Departments may need to give a good deal more thought to because applicants for licences are entitled to have their licences dealt with in accordance with procedures which are certain. There is the requirement of certainty. If there are going to be appeals I can see arguments being raised that the Appellate Tribunal should be an independent one and not simply composed of officials from the Ministry who have turned down the application in the first place. This may also apply if there is any form of ability for any third parties to object to the grant of licences. I think we are rather getting into a situation where departmental adjudications really are not going to be satisfactory any more, particularly at the appellate stage. I think the Government may need to pay more attention to that.

  170. I think that is a significant answer. I think it is one we might need to follow through when we consider our report. Can I pick you up on another point that you recommended. You recommended this licensing by default.
  (Lord Scott of Foscote) Yes.

  171. When it had not been dealt with in a certain timescale. In the response again from the Government they basically say that would not be satisfactory in relation to other purposes.
  (Lord Scott of Foscote) My recommendation about licensing by default was prompted by the inordinate time that some licence applications had been left pending before a decision on them had been taken. I do not know whether any Members of this Committee have ever been lobbied by their constituents in order to try to get some sort of action on licence applications which appeared to be simply sitting on somebody's desk and not progressing. It is clearly wrong that state of affairs should be allowed. The only solution that I could think of was the default licensing situation in which the Ministry would in effect have to refuse the licence in order to avoid the default licence being granted. There could then be an appeal and the matter could be, as it were, by force, progressed. I can see the objections to it. If there is a better way of making sure licences are dealt with properly and within a reasonable time limit, fine, but I could not think of one.

  172. Thank you for that explanation. I think clearly we all favour prompt decisions. It is the worry they might be approved when they should not be which is a concern. I take the key point. The third point on this is this issue of you consider that where there is a refusal there should be in writing an explanation. Again, the Government say they do that or in the main they do that.
  (Lord Scott of Foscote) I think they should be required to do it as well as doing it ex gratia.

  173. Can I tease out one point. On the issue of national security, they tend perhaps not to give an explanation or a very feeble one if they maintain national security is involved. Is there something there?
  (Lord Scott of Foscote) There may be. If the reason for refusing a licence is a national security reason reached because of intelligence which the Government has had access to then plainly you cannot say anything more than there are national security reasons for refusing it. Nobody could expect more than that. There has to be the ability for the Government not to disclose the intelligence foundation for the decisions they reach, if that is the reason.

  174. A judge presumably could see those, could he or not, in certain circumstances
  (Lord Scott of Foscote) This gets back to another area really. I suppose so. If there was judicial review challenge and a request for discovery and a public interest immunity point taken to resist the discovery, the judge presiding could look at the documents in order to see what their substance was, yes, certainly

  175. A final question, not so much about the administrative procedures but generally about the proposed Bill, and seeking your advice on this particular point, bearing in mind your great legal expertise. It does not actually contain any offences in it directly. It has controls but there are no offences. They are all to be dealt with in some secondary manner without parliamentary discussion, no discussion in some cases in Parliament. You have mentioned the Human Rights Act before—
  (Lord Scott of Foscote) I thought there was something in the Bill about offences. There is certainly something about penalties.

  176. They are to be spelt out in subsequent Orders. I do not think they are specific offences in the Bill.
  (Lord Scott of Foscote) There is a provision which says that—


  177. Clause 7, is it?
  (Lord Scott of Foscote) That is right, yes. Breaches of export controls are to be dealt with now, as previously, by Customs and Excise. The Customs and Excise Management Act of whatever the year is, and I cannot now remember, creates its own offences for offences against the breaches of the Customs Acts. The Bill provides for this Act to be one of the Customs Acts so that will bring in the offences, at least I think it will, under the Customs and Excise Management Act. The loose string is that although Customs and Excise is said to be the enforcement agency for export controls, it is not said to be the enforcement agency for transfer controls or for the transaction controls which are both novel in this proposed Bill and which were not contained in any previous controls. I have been wondering what the enforcement agency is going to be for that.

Mr Cohen

  178. Good point.
  (Lord Scott of Foscote) I imagine it is not going to be Customs and Excise or there would be the express mention of those controls as one of the export controls in the Bill, in which case it will be the ordinary police and the DPP, perhaps Serious Fraud Office, depending on the nature of the circumstances. In relation to these other controls, where the creation of the offence will be found is not clear, I think. Obviously for those the Customs and Excise Management Act offences will not apply.

  Chairman: That is a very good point for us to pursue.

Mr Chope

  179. Can I take you back to the issue of default licences. I am grateful to you for telling us really that your thinking behind that was there was no other way of somebody forcing a decision out of the Government and you were using the default system in that way. If you look at what happens under the planning law, in a sense the default system does not mean you get your planning permission but what it means is that if you have not had a decision on your planning application then you can appeal. Do you think some system like that might help because there is tremendous pressure at the moment from exporters who cannot get decisions? We heard this morning of a case where somebody had been waiting for over three years just to get a decision.
  (Lord Scott of Foscote) That would be a deemed refusal as opposed to being a deemed grant.

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