Examination of Witnesses (Questions 20
TUESDAY 30 JANUARY 2001
MP, MR WILLIAM
20. You keep on, dare I use the word, retreating
to the fact that it is 12,000we are not talking about 12,000.
You know we are not talking about
(Mr Cook) You are asking about
21. We are talking about a very small fraction
of licences. Secretary of State, you do not actually view 12,000
licences, do you?
(Mr Cook) No, but my civil servants will view a high
proportion of the 12,000
22. How many licences are brought to your attention?
(Mr Cook) They will then refer a proportion of those
up to Ministers, and a few of those will come to me. I absolutely
agree it is a very small proportion, I am not challenging that,
but you are asking, as a Committee, to involve the 12,000 and
you are not giving me, at the moment, any guidance as to what
percentage, what number, what proportion of those you wish to
take further to a stage 2 process.
23. Could you tell meand I accept it
will be a rough and ready assessmentwhat proportion of
the 12,000 licences fall on ministerial desks?
(Mr Cook) I would not want to give a figure off-hand
but I can write to the Committee. I do not know that that necessarily
helps us, Chairman, because it is not necessarily going to be
the same judgment that you would make as my civil servants make.
24. But it actually produces an "order
of". The Committee would not want to be investigating dozens
and dozens more licences
(Mr Cook) I am not seeking in any way to prevent you
having access to data. I am very happy to write and give you the
percentage that we think go to ministers, say, in the Foreign
Office. I cannot speak for my other colleagues. I am not clear
whether you are saying to me that you will accept that as the
same percentage which comes to the Committee.
25. I think we would know that it was not this
massive 12,000 that you keep on threatening us with.
(Mr Cook) I am not threatening you with it, it is
in your own stage 1 notification. You are asking for the 12,000,
I am not presenting that figure, nor am I presenting that process.
This is your own process.
26. I think one of the reasons why we thought
that at some stage there may be a case for a Parliamentary debate
or a Committee reporting in the way you proposed is that the debates
we have had in the pastlet us take the Zimbabwe spare parts,
which you said, in the end, was a subject of Parliamentary debate
and discussionwere only because there was a leak and sometimes
leaks are misleading. At least this would be a proper and ordered
approach to the whole issue, whereas at the moment we are depending
upon leaks and partial explanations in newspapers.
(Mr Cook) No, I would very much dispute that, Chairman.
As I said, we are the most transparent of any of the arms exporting
nations. Our Annual Report is more comprehensive than anything
produced by any of the other European countries. It may well be
the case that in the very recent past scrutiny and debate on arms
export policy was the subject of leak and of guesstimate. It is
not now, it is on the record. The issue of principle that weighs
heavily in Government and weighs heavily on my colleagues is whether
that scrutiny should be prior or post a decision. I will not conceal
from the Committee (indeed, it is set out in our response) that
there is some nervousness as to where that leaves Government departments
in respect of other exercises of executive function. For instance,
DFID may not be comfortable with the idea of prior scrutiny of
an aid decision; DTI may not be comfortable with prior scrutiny
of whether it provides assistance or does not provide assistance
in the case of a company; the MOD might well be concerned about
prior scrutiny over a procurement contract. All of these are important
issues, all of these do require scrutiny in Parliament, are scrutinised
by the Members of this Committee, but they are scrutinised after
the executive has taken its decision; it is not a decision shared
with the Select Committee.
27. The third area of practicalities that was
raised was that, in fact, somehow we would be prying into this
important relationship between officials and ministers; that we
would be seeking access to the sort of advice that was being put
to ministers. I think, if you look back at what you have said,
I am not sure that that stands up. We did not ask for that type
of information and I do not know why you have put it up as being
a sort of obstacle or a problem. We did not ask to receive what
officials are advising you or your fellow ministers.
(Mr Cook) If you want to go into this process, then
I think you have got to be honest about the implications. Now,
maybe you can robustly defend the prospect that you should have
the right to see advice of civil servants to ministers, and that
this should be a departure from the general principle.
28. We have not asked for that.
(Mr Cook) I am coming to that, Chairman. I do not
honestly think you can ask, for instance, for stage 2 notification
process without, at some point, mentioning what is the advice
coming to ministers. After all, you are asking to see, here, the
more difficult, the more contentious, the more complex decisions
and you are asking to see themimplicit in the word "prior"before
ministers reach their decision. I cannot readily see how you can
make an informed judgment on this unless you are enabled to see
papers that canvass the pros and cons for consideration.
29. I did not think that was our suggestion;
our suggestion was that we would ask for further information about
the licence, much of this information would have been made available
when the original licence application comes in, and the information
we might ask for would probably be the same information officials
were asking for or you would be asking for. We would not be asking
officials "What are you going to say to Secretary Cook on
this issue or that issue?" We would be saying "Can we
have some information about this licence so that we can make an
assessment whether we wish to proceed to a notification?"
We are not asking for your officials to give us what they would,
in the end, be recommending you to do.
(Mr Cook) In fairness to the Committee, Chairman,
they are going to have to have access to some information/advice
on the considerations of any complex or difficult application.
Otherwise the decision that you are then making is a decision
that is not going to be an informed decision, and I am quite confident
this Committee would not wish to take such a decision. I would
suspect that faced with a stage 2 process and a difficult case
the inevitableand perfectly correctinstinct of the
Committee would be to fire us off one of the many letters you
send us, and the reply to that letter will be providing the information/advice
on which Ministers themselves will come to a decision on.
30. I think we would make a distinction: we
would be asking for facts, not advice.
(Mr Cook) I would like to think that my civil servants
give me facts rather that subjective thoughts.
31. We would ask for facts.
(Mr Cook) Yes, but here we are into a sort of slight
play on semantics; where do facts tail off into subjective judgment
and where is advice? Advice is information.
Mr Rowe: Mr Chairman, it seems to me that when
the Secretary of State said, quite early on, he had some yearning
to share some of his responsibilities with Members of Parliament,
he was being very sensible, because it seems to me that the kind
of application that we are talking about is the kind of application
in which at least one of the departments concerned would have
some reservations of their own about the appropriateness of granting
a licence. That, in itself, would cut the numbers down very, very
sharply, which would mean everyone would look at issues which
the departments themselves were concerned about. It does seem
to me that there is a strong case for saying that Government would
actually benefit from, in very contentious problems, getting advice
from Members of Parliament before granting the licence because,
thereafter, if they grant a licence of which later on the House
of Commons strongly disapproves, they have got a much heavier
load to carry than they would have had otherwise.
Chairman: Is that a question?
Mr Rowe: That is what I think, and perhaps the
Secretary of State would care to comment on that.
32. Do you want us to share in that?
(Mr Cook) In many ways I would love you to share my
responsibility so I can blame all the contentious decisions on
Ted Rowlands and his Committee, but I note you are being very
careful to leave the responsibility with ministers
(Mr Cook)not with the Committee. Therefore,
it does seem to me a rather one-sided bargain. I would want to
contest one point that Mr Rowe is making. One should not assume
that any scrutiny that influenced ministers has to be prior scrutiny.
Indeed, I think that the decisions that we take on arms exports
have been immensely informed over the last three years by the
degree of scrutiny and dialogue that there is between us, and
the Committee will not be surprised if, in anticipation of what
they may say afterwards, it is a factor in the minds of ministers
when they approach this. Just as the publication of our report,
which is a transparent report after the event, this is a post-event
report, also shapes our minds because we know we have to be honest
and open and this Committee will scrutinise us. Therefore, I would
not under-rate the effect of post-scrutiny influencing a decision.
Sir John Stanley
34. Foreign Secretary, can we try and clear
another one of your road blocks, hopefully, somewhat or totally
out of the way. You did say in the Government's response, "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 the
accordance with the powers conferred by Parliament." In other
words, the Government is erecting a supposed legal objection to
the prior scrutiny proposals of the four Committees. Could I ask
you, given the fact that, and I am delighted you have already
referred to it, in paragraph 88 of our report, in the first sentence,
we make it absolutely clear that responsibility for decisions
on arms export licences would continue to lie wholly with ministers
there can, in fact, therefore, be no question of any encroachment
on the existing legal authority given by Parliament to ministers
in this area. Therefore, the legal objection that has been raised
would appear to be a wholly specious one?
(Mr Cook) As I say, I am not sure I am attracted to
where the responsibilities are for such a joint process. I would
say, Sir John, I am not quite clear where the Committee sees the
added value of prior scrutiny. As a practising politician I am
slightly sceptical whether the first time I ignore your advice
you will sigh with patience and resignation and say, "We
accepted the responsibility would rest with the secretaries of
state". You will quite properly and quite rightly complain
to Parliament that your advice on this matter was ignored. In
those circumstances I think that we are somewhere in between that
simple stark statement that "the responsibility rests with
ministers" and joint decision-making, which would be the
ultimate end of this process.
35. That slides away from the particular point
that I put to you, which is the suggestion that there is some
legal objection to the proposal which the Committee is making.
I put it to you that the Government, of course, can take a view
that it does not like the proposals but I do put it to you that
to try to knock down the Committee's proposals on legal grounds
is, and must be, wholly specious, given the fact that the Committee
in the clearest possible terms made it clear that the responsibility
will continue to lie with ministers?
(Mr Cook) I am sceptical whether that would survive
the first three months of the process. Laws can be changed, a
legal argument is not in itself an eternal argument against. There
is a bona fide issue of legal consistency. We have set
up criteria by which we judge arms applications. I am happy to
say despite two or three years of the type of scrutiny we now
go through nobody has really come up with a case where we have
departed from those criteria. Nobody has actually complained that
we have departed from this criteria. It is important for us that
we stick to the criteria because we are all vulnerable to review
by an applicant who feels he has been treated unfairly. Therefore
in every decision we make we have to be confident it is a consistent
decision, to the extent that we share that decision beyond the
Government. So, it does raise the possibility that you may end
up with a decision that is inconsistent with the criteria.
36. Following what Mr Rowlands said on the issue
of advice to ministers, is it not the case that already, in the
great majority of questions, which you, Foreign Secretary, have
taken from the Foreign Affairs Committee asking the Government's
view on specific questions of foreign policy, inescapably the
response which you give must rest on advice you have received
as the Foreign Secretary, but you never suggested to the Foreign
Affairs Committee you cannot respond to our questions because
you are drawing on the advice you have received from your officials.
Why is this particular question in any way any different from
what you do regularly as a matter of course in the voluminous
correspondence between you and our Committee during this Parliament?
(Mr Cook) In sheer self-defence I think I should say
at this point that I do not always accept advice and it is not
always advice from officials you hear in response to the Foreign
Affairs Committee. The issue here is not how we defend a decision
that we have taken or a course of action we have taken, but whether
the Committee should intervene before that decision is taken.
Indeed, in the nature of ministers, sometimes you take decisions
against your officials.
37. Secretary of State, I have a little bit
of difficulty, you have already said to us that if we could sort
out numbers that would not necessarily be a problem. If criteria
could be mutually agreed we could get that issue out of the way?
(Mr Cook) It would be a help.
38. It is not the obstacle that was once suggested,
perhaps if we tidied up procedures. I do not want to go over the
ground again. Numbers in themselves are not the single biggest
issue. The second question is about the publication and confidentiality.
The Intelligence Committee has a relationship with the appropriate
authorities and it seems to operate quite satisfactorily. Could
you envisage a situation where a sensitive case was discussed
with this Committee prior to a licence being granted and that
no publication of the discussion that we would have would take
place until the licence was issued and the deal was struck? Could
there not be a procedure whereby that concern could be accommodated?
If you assume that there is goodwill on both sides and that if
we made representations and they were not accepted we would not
release that story to the press or seek to raise it by other means
in the House?
(Mr Cook) First of all, can I go back to the general
point you are making. It seems to me there are two separate levels
of this discussion, one which is a practical consideration touches
on the question of delay, and the issue of delay, of course, unavoidably
touches on what proportion you wish to see from the start and
what proportion of that proportion you then wish to pursue. It
does seem unavoidable to me that the larger the numbers involved
the greater the amount of work on my staff and other departments,
and the greater the potential for delay. That is a very serious
concern and we should not push it to one side. It is an important
management concern for any minister. It is not the issue of principle,
and the issue of principle we have also touched on, which is whether
the department would feel comfortable not with scrutiny, that
is the nature of life of a minister, but with prior scrutiny and
what is the precedent for other parts of that department's work.
Dealing with the first part of that does not resolve that major
question of principle. Confidentiality is also part of this practical
consideration. I anticipate we are going to have a private session
later on in which I have no doubt some pending applications will
be raised by some of you. We have no principle of prior scrutiny,
no requirement of prior scrutiny, without conceding that I am
very happy to have discussion on some of those things that concern
colleagues. As a generalised rule for every application to be
available to the Committee may cause pause amongst some of those
industries that make applications and, more likely, may cause
pause for those who might place contracts with them and may go
39. There are also those people who currently
make applications and after six or nine months come to us because
they are sick and tired of the manner in which it is being handled
by you and your officials. We all have innumerable instances of
manufacturers who just decide to give up and lose the contract.
It is probably, more often than not, done because you and your
officials choose not to come to a decision and you hope the difficult
cases might go away.
(Mr Cook) I dispute that, Martin. It may well be the
case that not everyone runs departments efficiently and that has
to be resolved by a process of dialogue and sometimes in those
circumstances, which are very few, you are dealing with a changing
situation in the country. I am not going to resile from what I
said at the beginning. We are not satisfied with our performance
in terms of turning round export licence applications. We would
like to achieve a closer performance to our target. Whatever the
merits of the Prior Scrutiny Committee it is hard to deny it is
going to make it more difficult rather than more easy to meet