Examination of Witness (Questions 200
WEDNESDAY 25 APRIL 2001
200. Why not do the whole job properly rather
than leave the 1939 Act to deal with the import side of it?
(Mr Byers) I think it still does what it was originally
intended to achieve in 1939 as far as the import side is concerned,
particularly given that most of the provisions now affecting imports
will be covered by measures in relation to the European Union
where we do have the opportunity in this House to scrutinise them
through that particular vehicle. That is quite a practical reason.
I think the pressure also in terms of, if you like, the mischief
that we were trying to remedy from the 1939 Act was very much
on the export side, and that is really what we have been concentrating
on. I think had we also wanted to cover the import side then I
think there may have been a further delay. Secondly, being very
frank with the Committee, it would have been a far bigger Bill
as a result and that may well have meant difficulties in terms
of securing parliamentary time. It has not been easy to get parliamentary
time. We still need to make sure it is in there not just as a
draft but actually in the proper form for a Queen's Speech hopefully
in the near future and to secure parliamentary time. That is easier
to do if a Bill is shorter and more focused. I think we have got
a far better chance of achieving parliamentary time with an Export
Controls Bill than perhaps we would have had we introduced the
import elements as well. That is a very practical and political
reason why. My own view, and I would be interested to hear Members
of the Committee, is I do not think we are missing an awful lot,
to be honest, by not covering the import side. It would have been
a good tidying up operation but in terms of what is achieved in
201. Except that there isn't actually parliamentary
oversight of import controls in the 1939 Act. Your defence on
that is apparently that it is mostly now European legislation
but the very thing that Scott condemned on the export side will
actually still apply to the import control side of the 1939 Act.
(Mr Byers) I think there are a number of areas where,
on the import side in this House, through the way in which we
deal with European Union matters, there would be a degree of scrutiny
as I understand it.
202. Before we get on to the substance of this
Bill can I deal with the culture side of the Bill because although
our four Committees are not charged with this responsibility,
it is in the Bill and, therefore, I will ask about it for completeness'
sake. Is the passage of the Bill a prerequisite for UK accession
to the 1970 UNESCO Convention on Cultural Property? Will it help
to speed up the process and improve the UK's standing?
(Mr Byers) As you know, Chairman, this is a matter
Chris Smith leads on from the Department of Culture, Media and
Sport. I have spoken to the Secretary of State about this. His
view is, and it is also the view of officials, it is not essential
for accession but it will help. It will be very useful to have
this on side, as it were, in terms of accession. Although not
a prerequisite it will be something that will be very helpful.
203. There is one other issue that is not the
responsibility of our four Committees and that is the issue of
export of bovine offal, the agricultural side of the export thing.
Why is the public health issue not included in the Schedule of
(Mr Byers) There is a very good answer to that but
I cannot immediately find it, Chairman. I have got an answer somewhere.
If the Committee will agree I can certainly do you a note on it.
204. It will have to be an urgent one.
(Mr Byers) It will.
205. We have to report on this within the week.
(Mr Byers) It may be one of those occasions where
a note will be passed to me and before the end of the proceedings
I can give you an answer, Chairman.
206. That will be very useful.
(Mr Byers) Bovine offal, I know, is of great interest
to a lot of people.
Chairman: Let us get down to the issues
which do fall very much within our four Committees. Parliamentary
prior scrutiny has been very much a part of our submissions to
Ministers in reports from the four Committees. Sir John, would
you like to lead.
Sir John Stanley
207. Secretary of State, you are well aware
of the degree of focus which these four Committees have placed
on this key issue of policy. You will be aware that amongst these
four Committees you have in excess of 40 backbench Members of
Parliament drawn from all three major parties, in other words
right across the political spectrum, who after months of detailed
examination and after visits to two countries which operate a
system of prior parliamentary scrutinySweden and the United
Statescame to a unanimous conclusion that it was entirely
possible and, indeed, highly desirable to establish within clearly
defined parameters a prior parliamentary scrutiny system for this
country and for this Parliament. You will not be surprised to
know that we were considerably disappointed by the initial negative
response on this particular point that we received from the four
Secretaries of State. But we were encouraged when the Foreign
Secretary came in front of us, speaking, of course, on behalf
of the four Secretaries of State and in his evidence to us on
30 January at paragraph 47 he said that "...if the Committees
wish to put to me a refined proposal I will, of course, consult
with my colleagues." Well, the four Committees, again unanimously,
submitted a refined proposal to the four Secretaries of State
in March this year, and that of course is now before you. We believe
we have met, in our views totally cogently, such objections as
have been put forward against this proposal. We have met the issue
of delay, we have met the issue of confidentiality, we have met
the issue of legality, which we felt was a fairly specious issue
but we responded on that point as well. We are not inviting you
today to anticipate the Government's response, because that obviously
will have to take place in the normal course of events on behalf
of the four Secretaries of State. The question I would like to
put to you, and the assurance that I would like to seek from you
is this: given the fact that the Foreign Secretary has been before
us, has asked us for a refined proposal on which he is going to
consult with the three other Secretaries of State, do we have
your assurance that the Government is prepared to keep an open
mind on this issue and to do so in particular in the context of
this Bill? Because I do remind you, Secretary of State, that when
the Government made its initial response it specifically pointed
to the possibility of this Bill being a vehicle within which the
issue of parliamentary scrutiny in particular, in our view prior
parliamentary scrutiny, might be addressed. Just for the record,
you said in your response to our first report: "The Government
would also like to point out that when the new primary export
legislation is introduced as proposed in the 1998 White Paper
this will provide Parliament with the opportunity to debate the
whole field of export controls and licensing powers including
delegation of powers and the form of parliamentary scrutiny".
So against that background do we have your, I hope, clear assurance
that the Government's mind is still open on the issue of prior
parliamentary scrutiny and that the Government in principle is
willing to entertain this issue being incorporated in legislative
form or in policy form when this Bill comes before Parliament?
(Mr Byers) I think, Sir John, that it would be foolish
of any Government to ignore the unanimous views of 40 Members
of Parliament from across the political spectrum. I have been
following with great interest the debates that you have been having
within your respective committees and coming together on this
particular issue. Indeed, I had a very informative weekend reading
the background papers. What is very instructive and very helpful
to the Government is the way in which the Joint Committee has
been prepared to tailor its own response to meet the concerns
that have been expressed over a period of time. I think the proposals
that came from the Joint Committee on 14 March seek to address
many of the concerns that have been raised. Indeed, I have spoken
informally to your Chairman about these particular matters. The
Government is considering how we respond to the proposals which
came on 14 March and it would be wrong for me today to pre-empt
what the Government response might be. What I can say is that
the model contained within the Joint Committee's proposals on
14 March could be introduced without primary legislation. In a
sense, although the Bill is here, we do not actually need the
Bill to agree amongst ourselves effectively how we intend to adopt
these particular matters. I have to sayif I can say by
way of backgroundI have found it extremely helpful to know
that my decisions when they are taken in these areas are going
to be subject to parliamentary scrutiny because when I sit in
the evening looking at the export licences and applications for
them it is, I think, very helpful to know. It does not make it
always easy to come to the decisions but it is important that
the Secretary of State for Trade and Industry, who is the Secretary
of State who in the end approves the licence or disapproves the
licence, knows that those decisions will be subject to approval
by Members of this House. That does act, I think, as an important
element in terms of the decision making process. I think we have
achieved a lot. I think the annual reports and so on have introduced
a far greater degree of transparency. We can now be held to account
for the decisions that we have taken. Now I know the Committee
now wants to say "We should be involved before you take those
decisions so that our views can be had regard to and so that we
can see the decisions and the reasons behind them before a decision
is ultimately taken". The Government is going to consider
the views expressed on 14 March. We have not arrived at a conclusion
yet. There are many issues that we will obviously want to take
into account but I am conscious that the Committee in a real spirit
of trying to arrive at something has tried genuinely to meet the
concerns that have been expressed by the Government over recent
months. Now, I cannot say any more than that today, I am afraid,
but what I can say is that it is being given effective and detailed
consideration. We have not arrived at a conclusion yet.
208. The Government's mind is open, not closed,
on prior parliamentary scrutiny?
(Mr Byers) To be honest, we would not be looking at
it if it was closed. We are still looking at it because we want
to respond as positively as we can to the very genuine proposals
which have been put forward. Whether we can meet them or not it
would be wrong for me to say, but what I can say is that they
are being given detailed consideration. You will be aware of the
concerns the Government has got. We are looking to see if in the
way in which the Joint Committee put forward their proposals on
14 March those concerns are actually met.
209. The Government's mind is open?
(Mr Byers) We have not reached a decision yet.
210. Could I add to what Sir John was saying.
As you know, Lord Scott has preceded you in this room. One of
the things he said was that time had moved on since he did his
report and he doubted now, with the incorporation of ECHR and
other developments into British law, whether the Department could
get away without an appeal mechanism. What struck me was that
this might be another powerful case for prior scrutiny if it could
be demonstrated that decisions had not just gone through your
Department but had been subject to scrutiny by parliamentarians
as well. I have two questions. One, what do you think about the
specific point about scrutiny and the other is if I have got Lord
Scott's comments correctly there may need to be built in an appeal
(Mr Byers) I am not aware of the evidence that Lord
Scott gave earlier this afternoon. There is at the moment a mechanism
for those applicants where we have refused a licence to appeal
against those decisions, so there is a mechanism there that we
have in place. I do not know whether that was the type of thing
211. He just said one of the weaknesses of that
is that it is an appeal within the Department.
(Mr Byers) Yes.
212. Perhaps different officials looking at
it but that might not be seen as sufficiently detached to meet
higher standards of justice.
(Mr Byers) That is the second point I think, whether
it now complies with the provisions that we have introduced more
generally. That is clearly something we will want to look at.
It is not something which certainly has been raised so far. If
in evidence it was an issue that has been raised clearly we want
to give regard to it. Whether the introduction of prior parliamentary
scrutiny will be the way to tackle it, if there is a problem identified,
I honestly do not know the answer to that. I think in terms of
the work we are doing within Government at the moment in preparing
a response to the proposals of 14 March, this is something I would
be more prepared to look at.
213. Just following up on this, Minister, Sir
John was pressing you on the issue of the openness of the Government's
collective mind. On this question of the appeals procedure, the
present one, and I support what Tony Worthington had to say about
it, you must have some concerns yourself about it. Do you have
any ideas concerning the modification of that system?
(Mr Byers) All systems can be improved. The way in
which the appeal system works at the moment is very much a system
whereby someone who has had an application which has been refused
is really always given an opportunity to have that reconsidered
and to submit more evidence. Perhaps if they feel they have not
been able to provide the full picture then they are able to do
that. I think it is a system that works reasonably well. It can
be improved. I worry about the delay that is built in as a result
of that. In the end, we have to take decisions based on the information
which is available to us. Often we have to say that the appeal
is going to be unsuccessful because they have not satisfied us
in terms of the evidence that they have been able to bring forward.
214. Am I not right in thinking that one appeal
led to the intervention of the UN Committee?
(Mr Byers) You are right but there is some debate
about the nature of that intervention as the Committee will be
215. Sure. Does that not mean there is something
wrong with the present system, the present appeals procedure?
(Mr Byers) People may disagree with the outcome, that
is different from saying the process is wrong. This is the important
thing about being accountable. People, as is happening now, can
say "We do not agree with you granting that appeal",
I think that is quite legitimate. Whether or not that shows the
process is flawed, that may be a different issue perhaps.
216. I do not think we can pursue prior scrutiny
any further at this stage. Before we just go on to the other question
of Parliamentary control over Orders, on the prior parliamentary
scrutiny you were right, Secretary of State, when you said there
is actually no need for it to be written in legislation, there
can be an agreement between the Government and the four Committees
to introduce a procedure of prior scrutiny. There was one legislative
point when in your December observations it was implied in one
of your observations that there would be the legal difficulty
of seeking the advice of the Committees. It was one of your points,
we thought it was one of your weakest points but it was one. If
there was any doubt, if there was a doubt of the kind proposed
in December, maybe at least this Bill ought to look at removing
any such doubt that, in fact, the Secretary of State would be
free to seek the advice from Parliament in operating under the
(Mr Byers) I think, perhaps, we recognised also it
was one of the weakest parts of our response, Chairman. We are
now very much of the view, in terms of the model put forward on
March 14th, that primary legislation would not be necessary. Clearly
what we would have to do, if there is an agreement that there
needs to be some element of prior parliamentary scrutiny then
I would expect that the Secretary of State in the Second Reading
debate will make it very clear that the Bill, as it presently
stands, would still allow a degree of prior parliamentary scrutiny
if that is the way the Government agrees we should go.
Chairman: The major point was about Parliamentary
control over Orders and there are provisions in the Bill and we
asked Lord Scott about that.
217. It was a substantial point of the Scott
Report that there was an absence of Parliamentary scrutiny of
Orders made under the 1939 Act, and the Trade and Industry Committee
has considered this matter in its report in December 1998. It
took the view that the Scott Report recommendation, which was
that there should be a form of modified affirmative procedure
in Parliament was the one it would prefer. Can you please take
us through the Government's response to the Trade and Industry
Committee view and how you have come to the conclusion which is
now in the White Paper?
(Mr Byers) I hope that we have been able to respond
positively to the issues that Lord Justice Scott, as he then was,
raised in his report. I think it is under Clause 3 Subsection
2 which makes it clear that any Orders under that clause will
be subject to parliamentary approval
Chairman: No, 3(2) is not the point Mr
Vigger's is on. 3(2) is about those Orders which fall outside
the Schedule of purposes. I think Mr Viggers is on the general
provision. We will come to 3(2) a little later. I am right in
believing, I think, 3(2) is not quite the same issue. Peter, will
you just repeat the question.
Mr Viggers: Yes. The closest point of
reference is paragraph 21 of the Export Control White Paper. What
it says is that the Government accepts the principle of a negative
procedure. It does not accept the Scott proposal of a modified
affirmative procedure. I would like to start from the point of
view of Scott's recommendation that there should be a modified
affirmative procedure. The Scott Committee explicitly proposedI
am quoting now from the Trade and Industry's Committee report
of December 1998a form of modified affirmative procedures
whereby an instrument comes into force immediately but lapses
after a specified period, if not explicitly approved. This relates
to the Export of Goods Control Orders and Orders similar to that.
218. Why have you gone down the negative procedure
route as opposed to the affirmative one?
(Mr Byers) That is a very simple way of putting it.
I am grateful, Chairman. My own view is that provided there is
the opportunity for Parliament to deal with these matters then
there will be an opportunity if the House feels strongly about
a matter then certainly in my experience, whether it is negative
or affirmative, then the way can be found for the matter to be
dealt with. That is the way in practice that these things happen.
219. Yes, the affirmative versus negative argument
of course is a well rehearsed one. The Trade and Industry Committee
did say in December 1998 "We are not unduly persuaded by
the argument that the form of affirmative scrutiny proposed in
the Scott Report would be unduly burdensome on Parliament...".
So, we, as a Quadripartite Committee, would start from that point,
but if you have rejected that modified affirmative route and are
proposing to us the negative resolution route, are you prepared
to say that the Export of Goods Control Orders will be shown to
this Committee in draft and assure us that a prayer against an
Order will be debated if six Members seek one?
(Mr Byers) My inclination is always to be as open
and helpful to the Committee as I possibly can be. I think what
I would be prepared to indicate today is that providing we do
not have problems with time constraints, which is always a bit
of a concern I do have here, because there are some areas where
we do have difficulties but, subject to that provision, whenever
time allows then, yes, I would be prepared for my Department to
show Orders made under the Bill in draft to the Committee. We
can agree to that.
Mr Viggers: Only something like six
Orders a year, we would maintain this would not destroy the system.
The point I am pressing is that paragraph 21 of the White Paper
does refer to the Trade and Industry Committee recommendation
but it does not specifically give the undertaking I understand
the Minister to have given to us. On that basis I am content to