Select Committee on Foreign Affairs Seventh Report


EGCOs and parliamentary procedure : Clause 11

Passage of 1990 Act

  22. The Scott Report included a detailed examination of the passage of the Import and Export Control Act 1990, which repealed section 9 (3) of the 1939 Act so as to entrench the continuing use of the wartime powers granted then.[35] It set out the growing feeling within the DTI that the Act might be vulnerable to legal challenge, and the advice of officials that the subjection of Orders to negative procedure would be an acceptable price, or a "painless concession", to pay for getting a one-clause Bill through quickly. The Scott Report regretted that the negative resolution procedure had been neither offered in discussions with the Opposition spokesmen, nor sought by them. It concluded that "It ought to have been treated as a minimum requirement".[36]

Laying before Parliament

  23. The foreword by the Secretary of State to Cm 5091 lists the voluntary laying before Parliament of Orders under the 1939 Act as one of three "important steps to improve Government accountability for strategic export controls." At several points the Scott Report commented adversely on the absence of consideration being given to at least laying orders before Parliament.[37] This step could have been, but was not, taken by Ministers at any time since the publication of the Scott Report in 1996.

24. The December 1998 Trade and Industry Committee Report recommended that, prior to the passage of new legislation, Ministers should give consideration to laying such Orders before the House. The Government's Response of February 1999 stated that it was considering this Recommendation. Ten months later, on 16 December 1999, the Secretary of State announced in a Written Answer that from then on such orders would be laid.[38] It took four and a half years from publication of the Scott Report before Orders under the 1939 Act were even laid before Parliament.

25. Since December 1999, eight Export of Goods ( Control) Orders (EGCOs)have been duly laid, by Command. This does not render them liable to any parliamentary procedure. A debate might be sought by means of a take note motion and a request for the referral of the paper to a Standing Committee on Delegated Legislation. It would be for Ministers to decide whether to accede to such a request. It is of course no substitute for formal parliamentary powers. As an interim measure, however, this procedure has helped by giving EGCOs greater visibility.

Negative or affirmative procedure

  26. The principal issue is the nature of parliamentary procedure to be applied to Orders under the new legislation. The 1996 Green Paper stated the Government's initial view that new legislation should allow for formal parliamentary consideration of rules and orders made under it, as well as advancing the rather exaggerated claim that "in practice Parliament regularly examines export control legislation".[39]

27. The July 1998 White Paper set out the Government's preference for negative procedure.[40] The Trade and Industry Committee commented in its December 1998 Report on the reasons advanced by the Government in the July 1998 White Paper for its preference for negative procedure rather than the modified affirmative procedure suggested by Scott. The principal argument was that the number of such orders would "impose a significant burden on parliamentary time". This argument did not persuade the Trade and Industry Select Committee. The White Paper estimated some six EGCOs a year. That compares with 180 instruments subject to affirmative procedure agreed by the House in Session 1999-2000.[41] The Government also described the EGCOs as largely uncontroversial and technical. If that were clearly so, it would indeed be an argument against subjecting them to a procedure requiring affirmative procedure.

28. The Trade and Industry Committee was persuaded that most changes in EGCOs were indeed uncontroversial, and that the modified affirmative procedure "would be likely to lead to further very brief and pointless meetings of Delegated Legislation Committees in order to debate wholly technical and uncontroversial measures". The July 1998 White Paper had stated that "negative procedure would allow MPs the opportunity to debate and vote on EGCO amendments where they considered this appropriate...".[42] It is in fact up to the Government to decide whether to provide such an opportunity for a debate and vote. The Committee therefore concluded that negative procedure would be acceptable, subject to drafts being made available to the Committee in advance of being made, and to an undertaking to find time for a debate if at least six Members so desired.

29. Cm 5091 sets out again the Government's preference for the negative procedure, on the grounds that it matches "the frequent, usually technical and uncontroversial nature of the Orders.[43] It records that "the Trade and Industry Committee commented that "the negative procedure for orders laid under the new legislation will be found acceptable" (HC 65, recommendation (c))." This partial quotation is presumably a genuine but regrettable mistake.

30. In evidence to us, Lord Scott told us that he would have preferred affirmative resolution procedure as he had recommended, but that he had been neither surprised nor particularly disappointed that the Government should have opted for negative procedure.[44] The Secretary of State told us that he was confident that if the House felt strongly about an Order a way would be found of dealing with it.[45] He also confirmed that, subject to time constraints, he would be prepared for drafts of Orders to be made under the Bill to be shown to this Committee.[46]

31. We have examined the eight Orders laid since December 1999. They do in some cases raise issues beyond the merely technical —

  • the prohibition of export of television broadcasting and news gathering equipment to Yugoslavia in January 2000 and the lifting of the ban in March 2001;
  • changes in the list of countries to which arms in transit through the United Kingdom may not be exported without a licence;
  • the exemption from Military List controls of armoured vehicles designed for the transport of valuables or for flails for mine clearance, and the extension of controls to all wheel drive armoured vehicles rather than just utility vehicles;
  • the extension of controls on individual handcuffs;
  • the exemption from controls of "cartridges specially designed for signalling, bird scaring or lighting of gas flares at oil wells"

Some of the technical changes are not and probably could not be fully explained in the Explanatory Notes. Some require expert knowledge of chemistry. They are by and large matters best exposed in evidence to a Committee already seized of the general context, which could then decide if they required debate and determination in the House or a debating committee forum. They would only rarely justify debate. We recommend that Orders under the Act should first be exposed in draft and in confidence to the Quadripartite Committee and, if then made and laid, the Government should undertake to use their best endeavours to find time for a debate if the Committee so recommended.

Prior parliamentary scrutiny

32. In our July 2000 and March 2001 Reports we have set out our detailed and refined proposals for prior parliamentary scrutiny of export licence applications. We await the Government's response to the latest Report. We do not intend to rehearse the arguments again. We raised the issue with the Secretary of State, in the context of the proposed legislation. In a very helpful series of answers, he confirmed that our revised proposals of March 2001 were being given detailed consideration, although no decision had been reached, and he accepted that we had made genuine efforts to meet the concerns raised by Ministers in their response of December 2000.[47] We welcome the positive tone of the Secretary of State's answers on prior parliamentary scrutiny.

33. We are concerned to ensure that the new draft Bill should not make the introduction of such scrutiny more difficult. In December 2000 the Government Response to our July 2000 Report stated that "Involvement of the Committees in the taking of decisions under the existing legislative powers is in any event problematic, in that an extra element would be introduced into the process. This might generate doubt as to whether the decision had been taken properly in accordance with the powers conferred by Parliament".[48] We have made it clear in our March 2001 Report that we regarded this objection as spurious. We were pleased to have the Secretary of State's assurance that the proposals for parliamentary prior scrutiny we had made in our March 2001 report could indeed be introduced without primary legislation.[49] We continue to recommend strongly that they should be so introduced.

Annual Reports: Clause 8

34. We have commented at length in our past Reports on the Government's Annual Reports on Strategic Export Controls. Cm 5091 states that "they have provided Parliament with the information needed to carry out regular, thorough scrutiny of export licensing decisions made by the Government".[50] They are of course open to improvement. It would for example be welcome if they were to appear closer to the end of the year to which they relate. We set out in our first Report a number of desirable changes. The Government accepted some but not others.

35. Clause 8 of the Bill seeks to place the annual report on a statutory basis, apparently in response to a suggestion from Oxfam.[51] The Clause obliges the Secretary of State to lay a copy of the Report before Parliament "as soon as practicable after the end of 2002 and each subsequent year". The Annual Report is at present published by the FCO as a booklet, without reference or series number. There have been complaints that they are not readily accessible, since they are not charged for. They do not seem to be distributed by the Stationery Office. The consequences of putting the Report on a statutory basis are apparently slight. Although we see no harm in putting the Annual Report on a statutory basis, it would be regrettable if it were to oblige FCO to charge for copies; if it had any unintended consequences for its availability; or if it were to lead to any further delays in publication.

35  Scott Report, C1.66- 1.117 Back

36  ibid, C1.110 Back

37  eg C 1.78, 1.82 Back

38  HC Deb, 16 December 1999, col 239w Back

39  Cm 3349, 2.6.1 Back

40  Para 2.1.4 Back

41  Sessional Returns, session 1999-2000, HC 100 Back

42  Cm 5091, 2.1.5 Back

43  Para 21 Back

44  Q 144 Back

45  Q 218 Back

46  Q 219 Back

47  Qq 207ff Back

48  Cm 4872, page 11 Back

49  Q 126 Back

50  Cm 5091, page 8, para 23 Back

51  ibid, para 24 Back

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