Select Committee on Foreign Affairs Seventh Report

II 1939 ACT: CLAUSE 12

Repeal or amendment of Act

1996 Green Paper

  12. The Scott Report plainly envisaged new legislation rather than an amendment of the existing and discredited 1939 Act. The 1996 Green Paper stated that it had "no concluded view on the desirability of introducing new legislation to replace the1939 Act", while emphasising the confirmation of the propriety of continuing to use the powers which had been bestowed by the 1995 Court of Appeal judgement in the Blackledge case.[21] It noted that if the 1939 Act were repealed "consideration would have to be given in due course to the future legislative base" for export controls on heritage items and bovine offal and for import controls, but that "these questions fall outside the scope of the present consultation exercise".[22]

1998 White Paper and Trade and Industry Committee Report

  13. The 1998 White Paper repeated that import and other export controls under the 1939 Act fell outside the scope of the White Paper and that full repeal of the 1939 Act would lead to a requirement for new legislation. "This is one of a number of considerations which the Government will be taking into account when deciding whether to amend or replace the 1939 Act".[23] The Trade and Industry Committee considered that it would be desirable in principle to repeal the 1939 Act and replace it with wholly new legislation, rather than seeking to amend it.[24]

Proposals in Cm 5091

  14. The Government now proposes to replace all the export control powers, but to leave the import control powers of the 1939 Act intact.[25] No reason is given for this decision in the Cm 5091, although the Secretary of State did offer an explanation in his oral evidence to us.[26]

Effect of partial repeal

15. Clause 12 repeals those parts of the 1939 Act which concern exports, and carriage "coastwise" and as ships stores. It does not repeal section 2 of the Act, which allows for charges to be imposed in connection with schemes of control, a provision which the 1996 Green Paper confirmed "is not used" and which never has been used. Section 3, on forfeiture of goods, is amended to remove references to exports and coastal carriage, leaving provisions for the forfeiture of goods imported "in contravention either of an order under this Act or of the law relating to trading with the enemy". Sections 4 to 6 were repealed in 1952. What is left of section 7, on declarations of ultimate destination, is repealed. Section 8, which provides interpretation of the terms "enemy", "enemy subject" and "enemy territory" is unamended, as is Section 9 which gives the (now misleading) short title. The rump of the 1939 Act continues to give the Government draconian powers to control imports, for no stated purpose and without parliamentary control; a power to recover charges from those controlled which has never been used; a power to seize goods imported in contravention of orders made; and legal definitions of "enemy" and related terms.


Previous examination

  16. The Scott Report did not cover imports. It did, however, set out the facts of the main legal challenge mounted to the continuing use of the 1939 Act. In 1983 Chris International Foods Ltd sought judicial review of the refusal of the Secretary of State to refuse it a licence to import 220 tons of bananas from the dollar area. The Scott Report records that "anxious thought was given within Government to the need for remedial legislation in the event that the appeal [by Chris International] should succeed...". In the event it was decided to let sleeping dogs lie. The Report also records the potential threat of legal challenge to the import regime on textiles, and its possible adverse effect on UK jobs, as having been raised in discussions with the Opposition in 1990 on the proposed amending Bill.

1990 Act

  17. The 1990 Act did for import controls what it did for export controls; it entrenched the imperfections of the 1939 Act. In introducing it at Second Reading, the then Minister for Trade emphasised its importance in safeguarding public security, and in enforcing "internationally agreed trade protection measures, including restrictions on imports of textile and clothing products within the framework of the multi-fibre arrangement". He also referred to its use to regulate the import of bananas.[27]

Use of powers

  18. The principal import order under the 1939 Act is the Import of Goods (Control) Order 1954. Article 1 of this Order stated bleakly that "all goods are prohibited to be imported into the United Kingdom". An open general licence was then issued permitting all imports except those specified in a detailed schedule, for which licences are required. The powers are used for speedy implementation of European controls. The import licensing of textiles and other goods such as footwear is carried out under 1939 Act powers. DTI has an 80-strong import licensing branch based at Billingham, which issues over 300,000 licences a year, predominantly for textiles and some specific categories of other goods from China and other Asian countries. The textile import licensing regime comes to an end at the end of 2002.[28] The powers are also used to implement occasional national policies, such as on the import of dangerous dogs. Lord Scott described the survival of the 1939 Act to control imports as "odd". [29]

Future of import regime

  19. We raised with the Secretary of State the continuing reliance on the 1939 Act for import controls. He told us that most of the measures affecting imports were introduced under EC controls subject to parliamentary scrutiny, and that expanding the Bill to cover the import regime could have led to difficulties in securing parliamentary time.[30] We can well understand Ministers blenching at the thought of reviewing this regime, involving the possible rediscovery of long-suspended Orders from before the Second World War on dyestuffs, plumage and potatoes. We would not want to jeopardise the Bill's place in the legislative programme. But this situation cannot be allowed to drift on. We recommend that the Government commit itself to laying before Parliament import Orders made under the Act as they have with export Orders, and to consult urgently on clauses to be included in the Bill to repeal what remains of the 1939 Act.

Exports: heritage

20. The main system of export controls on items other than strategic goods is applied to the export of cultural objects, under a 1992 Order. This is the responsibility of the Secretary of State for Culture, Media and Sport. Part 2 of Cm 5091 comprises an introduction to the draft Bill as it affects these controls. It states that it is not intended to change "significantly" or "substantially"the export control regime for cultural goods.[31] It also states that the purposes in the Schedule would allow the Secretary of State to implement the measures necessary to enable the UK to accede to the 1970 UNESCO Convention on illicit trade in cultural objects. It seems that passage of the Bill is not in fact a prerequisite for accession to the Convention, but that it will help.[32]

Exports: agriculture

21. At the time of the 1996 Green Paper and 1998 White Paper, controls on the export of bovine offal were apparently in force, following the BSE outbreak. Cm 5091 records that these controls were "not used" and have since been repealed.[33] The Secretary of State told us that there were no controls in place on agricultural goods.[34] We refer below (para 42) to the possibility of including the protection of public health within the purposes of export control.

21  1996 Green Paper, para 2.1.3. On 22 May 1995 the Court of Appeal rejected the argument put forward on behalf of the four defendants ( Blackledge and others) convicted of export control offences relating to the export to Jordan of an assembly line for artillery fuses - the Ordtec case- that the 1987 and 1989 Orders made under the 1939 Act were ultra vires: Scott Report, J 6  Back

22  ibid, para 1.6 Back

23  1998 White Paper, para 1.4.1 Back

24  HC 65, para 9 Back

25  Para 19 Back

26  See para 19 below Back

27  HC Deb, 29 November 1990, cols 1059ff Back

28  Second Report of the Trade and Industry Committee, HC 140 of session 1999-2000, Qq 86ff and Ev, p 6 Back

29  Q 136 Back

30  Qq 200-01 Back

31  Cm 5091, page 22, paras 2,4 Back

32  Q 202 Back

33  Cm 5091, page 7, para 19 Back

34   Q 279 Back

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