Letter to Rt Hon Robin Cook MP, Secretary of State
for Foreign and Commonwealth Affairs from Ted Rowlands MP, Chairman
of Quadripartite Committee
The Committees met last week to discuss the Government's
Response of 9 December to their July Report and the debate held
on 14 December in Westminster Hall, to which Peter Hain replied.
We cannot of course accept the proposition advanced
in the very last sentence of the Response that there can be no
role for Parliament in scrutinising the way in which Ministers
propose to use delegated powers it has conferred on them. I have
no doubt that Members will wish to raise this issue of principle
in oral evidence with you on 30 January.
In the light of the almost universal support expressed
in the debate for prior parliamentary scrutiny, and of the assurances
given by Peter Hain that Ministers would be open to a more detailed
set of proposals and would "examine very seriously any further
proposals, representations or deliberations that emerge from the
Committee", we decided to see if there were any clarifications
or modifications of the scheme for prior parliamentary scrutiny
set out in our July Report which could meet the practical objections
raised in the Government Response.
We propose to go through the objections as set out
in the Response to our Recommendations 22 to 24, as set out on
pages 10 and 11 of Cm 4872, paragraph by paragraph.
There can be no basis for the suggestion in the second
paragraph that consulting a parliamentary committee prior to taking
a Ministerial decision on a licence might cause legal problems.
In paragraph 88 of our Report, we stated plainly that "responsibility
for strategic export decisions will continue to lie wholly with
the Government". The statutory powers of Ministers are therefore
unaffected by our proposals.
The fourth paragraph sets out the concern
that the prior scrutiny system we proposed might lead to "considerable"
delay, and thus undermine the competitiveness of UK industry in
overseas markets. We have of course been very conscious of this
issue, and in our Reports have been critical of the interminable
delays which exporters too often experience at present.
We have however repeatedly stressed that it would
only be in a small fraction of cases that Stage 2 notification
would be required. For the vast majority of these, further factual
information provided to the Committee while the applications were
being scrutinised by the departments - for example, on end-user
or quantity - would lead to the Committee "clearing"
them as no longer requiring notification. That would leave a very
small handful of licence applications of which the Committee would
wish to be notified when it was intended to grant a licence.
Experience suggests to us, as it must to you, that
such cases will also be among those which will have certainly
have been examined for months rather than weeks, and that they
will almost certainly be cases in which Ministers have been involved.
In the case of the Zimbabwe aircraft spares, for example, the
decisions took many months. The idea that in a few such cases
a maximum extra period of 10 working days would make a
difference is simply untenable. We are however happy to reiterate
that, as is set out at para 88 of our Report, "national security
and operational considerations may make it impossible for the
Government to comply with the prior scrutiny procedure in every
case". What we are proposing closely parallels the terms
of the so-called "scrutiny reserve" operated by the
European Scrutiny Committee under the terms of a Resolution of
the House .
The fifth paragraph deals with the question
of the confidentiality of Stage 2 notifications. We stated that
we hoped and expected that the Government would be able to be
as open as the US Government in making notifications. While we
support the principle of transparency as demonstrated by the US
system, we accept that there are features of the US system which
make comparison difficult, including the existence of a high value
threshold in the US system. We recognised in paragraph 86 of our
Report that there might be good reasons to make Stage 2 notifications
in classified form. We would therefore be happy to undertake discussions
with the departments concerned to reach agreement on how best
We cannot however accept that the danger of damaging
bilateral relations with a country can be sufficient reason not
to engage in debate on the merits of exporting goods to that country,
as suggested in the last sentence of the fifth paragraph. In the
rare event of the Committee considering that a proposed licence
was of such significance as to merit debate in Parliament, we
do not think it can be seriously suggested that the sensitivities,
real or imagined, of the intended recipient should weigh heavily
in the balance against the need for democratic accountability
for such important decisions.
The sixth paragraph seeks to protect "advice
given to Ministers" and the details of interdepartmental
discussion. You candidly admit that we did not ask for such material.
It goes on to suggest that the Committee will need "access
to sensitive and technical advice on the nature of the material
covered" and detailed advice on the proposed destination
or end user.
That is true to some extent. The operation of prior
scrutiny would indeed depend on the development of a modus operandi
on the supply of technical clarification of the material for which
a licence is sought. Much of this is provided by the intending
exporters, who have told us of their frustration at how little
use seems to be made of it. The Committee would also of course
seek on occasions to know the identity of the end-user; this hardly
constitutes advice to Ministers. In both cases, there has been
no evident problem with the provision of information on either
the nature of the material or the end-user when we have sought
it in the course of the past eighteen months.
We are grateful for the offer of confidential briefings,
and will consider if there are areas where this might be of assistance,
perhaps in the light of the oral evidence you are to give on 30
12 January 2001