Select Committee on Foreign Affairs Seventh Report


Consultation on secondary legislation
(a)The Bill itself is largely an enabling Bill. The meat of the proposals being made will be in the secondary legislation to be made under the Bill. We recommend that every effort is made to ensure that a draft consultative version of the relevant secondary legislation is published before the House is asked to give the Bill a Second Reading (paragraph 11).
Import powers
(b)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. 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 (paragraphs 15 and 19).
Orders under the Act
(c)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 (paragraph 31).
Prior parliamentary scrutiny
(d)We welcome the positive tone of the Secretary of State's answers on prior parliamentary scrutiny. 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. We continue to recommend strongly that they should be so introduced (paragraphs 32 and 33).
Annual Report
(e)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.
(f)We recommend that consideration be given to a specific reference within the Schedule to internal conflicts within the country of destination. We recommend that Ministers consider the addition of further purposes for which exports may be controlled, including the avoidance of damage to health or the environment. Where they judge it inappropriate to add such powers, they should set out the existing control powers relied upon to fulfil such purposes (paragraphs 39 and 42).
Orders on temporary purposes
(g)We recommend that the period of time during which Orders made under Clause 3(2) may remain in effect without parliamentary approval should be 28 calendar days (paragraph 47).
Purposes, Orders and licensing
(h)The Orders are by and large confined to setting out in schedules the detailed categories of goods to be subject to control. These lists are almost entirely the result of various multilateral agreements on what goods should be controlled. The draft Bill therefore seems to constrain the freedom of Ministers to decide what goods or technologies may be subject to controls; but in practice Ministers are already constrained by the nature of existing multilateral regimes. The imposition of export controls is in practice exercised not only through secondary legislation on the definition of goods and technology requiring a licence, but through the actual process of granting or refusing particular licences for particular destinations in particular circumstances. We recommend that consideration be given to putting on the face of the Bill the assurances given in the explanatory paragraphs accompanying the draft Bill and in evidence to us, that licensing decisions should have due regard to the general purposes for which controls can be imposed, as set out in the Schedule to the Bill (paragraphs 48 to 51).
Crown immunity
(i)We recommend that consideration be given to the desirability of ending the blanket exemption from controls of Government and its agencies as exporters of licensable goods and technology (paragraph 53).
Licensing procedures: delay
(j)We recommend a one-off review of all outstanding licence applications of over 18 months, and the provision to the Quadripartite Committee of the resultant list, together with an explanation for the delays. The length of delay in reaching a decision is in a small number of cases unacceptable. We recommend that serious thought should be given to a form of mechanism to trigger a decision where the delay has become excessive (paragraph 62).
Licensing procedures: appeals
(k)We welcome the proposal to put the appeal procedure on some statutory footing, but consider that it will have to include some genuinely independent element. There would be advantage in putting this on the face of the Bill (paragraph 65).
Licensing procedures: Human Rights Act
(l)In view of the evidence we have received, the Secretary of State may wish to revisit his Human Rights Act certificate, particularly to the extent that it is intended to cover secondary legislation to be made under powers to be conferred on Ministers under the Bill (paragraph 66).
Technology transfer: academic concerns
(m)We recommend incorporation in the Bill of the safeguards for bona fide academic activity set out in the commentary on the draft Bill and in evidence from the Secretary of State. We see no case for complete exemption of academic activity from export controls (paragraphs 74 and 75).
Technology transfer: internet
(n)We recommend that steps be taken to ensure that measures in UK legislation reflect the experience of other nations also seeking to deal with the challenge of use of the internet as a means of transmitting controlled technology (paragraph 76).
Technology transfer and weapons of mass destruction: general
(o)The proposed controls on the passage of technology relevant to weapons of mass destruction are profoundly significant. The Government's proposals are, we believe, ground-breaking in some respects. They deserve support for bringing them forward. It is an area of policy crying out for more effective international agreement. There would also be benefit in close analysis of the experience of other countries and of the measures they are taking, faced with similar challenges. Given the complexity and sensitivity of the issues, it is also particularly important that there be wide and detailed consultation in drawing up the secondary legislation. Non-proliferation is arguably the most important single issue in strategic export control (paragraph 77).
Intangible transfers and business
(p)It is nonetheless incumbent on Ministers to ensure, in deciding on the details of the regime for intangible transfers of technology, that burdens on business are minimised, including through sensible adaptation of the existing regime for tangible transfers (paragraph 82).
Technical assistance
(q)We recommend a clearer exposition in response to this Report of the current situation on technical assistance controls, so that the House will be in a better situation to assess the proposals now being made (paragraph 89).
Trafficking and brokering: extra-territorial controls
(r)Whilst recognising the practical difficulties in policing activities outside the United Kingdom, we see compelling arguments in favour of extending controls on brokering and trafficking to activities outside the country and recommend that controls be introduced on the activities of UK citizens and companies wherever they take place (paragraph 96).
Trafficking and brokering: logistics
(s)The Bill as presented should allow for the possibility of subsequent introduction of controls on the actual transport of controlled goods, and on those arranging for such transport, by an appropriate extension of the scope of "trade controls" as defined in Clause 5 (paragraph 99).
Licensed production overseas
(t)We do however continue to believe that some statutory powers may be necessary to control licensed production overseas, and recommend that the Bill provide for such powers to be taken in the future under secondary legislation, to be used only if a non-statutory regime is shown to have failed (paragraph 106).
End-use: post-export monitoring
(u)There is a good case for some public assurances that post-export end-use monitoring is carried out thoroughly and systematically, and for an explicit commitment to recognise the importance of that task when, for example, assessing the staffing requirements of overseas posts, including defence staff (paragraph 111).
End-use: power of revocation
(v)We welcome the clear assurance from the Secretary of State that he has sufficient legal powers to revoke a licence where there has been a breach of end-use conditions (paragraph 112).
End-use: administrative system
(w)There may be no need for legislation. We would however welcome assurance that the Bill's provisions for secondary legislation on the system of administrative controls are broad enough to be able to cover the introduction of a more systematic form of end-user certification (paragraph 114).
(x)It is likely that the new controls sought will need extensive use of existing powers, in particular on interception of electronic communications, and based on past experience not improbable that the law enforcement authorities will seek additional or amended powers. We recommend that clarification be provided to the House on the identity of the enforcement agency for transfer and other controls to be introduced by the Bill, and some explanation of the practical significance of the legal provisions to be made (paragraphs 115 and 116).

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