Examination of Witnesses (Questions 140
- 159)
WEDNESDAY 25 APRIL 2001
RT HON
LORD SCOTT
OF FOSCOTE
AND MS
PRESILEY BAXENDALE,
QC
Sir John Stanley
140. Just for the record, Lord Scott, there
is absolutely no reason why you should have got involved in this
particular debate because, as you rightly pointed out, this was
not within your compass when you made your report, and there is
no reason why you should have read yourself in in terms of what
these four Committees have proposed. Just for the record, can
you confirm for us that in making that instantaneous response
to Mr George's question you have not actually so far read the
full proposal as stated in our report of July last year and our
refined proposal as stated in detail in our report of March this
year, is that the case?
(Lord Scott of Foscote) I will put my glasses on to
see what it is I have read. I have read the second report on Strategic
Export Controls which was printed in December 1998 but that is
all.
Chairman
141. We have moved on since then.
(Lord Scott of Foscote) Yes.
Sir John Stanley
142. This is obviously no criticism but we have
produced a very detailed proposal and, for example, the point
you are making about delays and so on and non practicability we
believe we have totally overcome those and certainly we believe
there are no legal or constitutional issues. I am glad we have
had this exchange. We have put it into context. I am sure our
Chairman will make certain that you are fully sighted on the detail
of our proposal and I know in your usual way you will look at
it with a very careful open mind.
(Lord Scott of Foscote) I can confirm that I have
not read that material and I reserve on this occasion, as most,
the right to change my mind.
Sir John Stanley: We hope equally the
Government will be showing the same flexibility of mind as well.
Chairman
143. The parliamentary control which you did
report upon was, of course, the whole question of parliamentary
scrutiny and supervision of Orders.
(Lord Scott of Foscote) Yes.
144. You will have seen from the draft Bill
that the proposal is that there is going to be a negative procedure
on such Orders. Is it still your judgment that the nature of the
Orders is such that they require a form of affirmative consent
or do you find that the draft Bill as it stands does meet the
concerns you expressed in your original report?
(Lord Scott of Foscote) Well, the draft Bill provision
for a negative procedure in regard to the Control Orders made
is plainly much, much better than the absence of any provision
in the predecessor Act and the emergency Act of 1939. I think
it would probably have been too much to have expected that every
single Order made under the empowering provisions of the Act would
ever have been subject to affirmative procedure because the time
involved might have made it difficult, although there is a procedure
for dealing with that which is to be used in connection with the
powers under, I think it is, Section 3(2). I was very pleased
to see that any amendment of the purposes also needs affirmative
resolution procedure. Yes, I would have preferred affirmative
resolution procedure, as I said in my report. At the time I wrote
the report I did not think it was very likely to be a proposal
which was attractive to Government. I think it is a fair comment
that generally speaking Government prefers a negative resolution
procedure to affirmative for the obvious reasons of control and
time that are involved. I remain of the view that affirmative
resolution procedure would have been preferable with an exception,
although it might have been difficult to draft, for minor amendments,
technical changes. For anything substantial it would have been
preferable. I am not in the least surprised, and not particularly
disappointed, that it is not there, I did not really have any
huge expectation that it would be.
145. One of the really significant and ground
breaking bits of this draft Bill is in fact putting the Schedule
of purposes in.
(Lord Scott of Foscote) Yes.
146. This is going to be the first time in law
we will have a Schedule of purposes for export controls. May we
explore that further.
(Lord Scott of Foscote) Of course.
Mr Viggers
147. Yes. Lord Scott, your report called for
a debate on the purposes for which export controls could be used,
and for them to be set out in legislation. Does the Schedule meet
this point in your opinion?
(Lord Scott of Foscote) Yes, I think it does, broadly
speaking. The suggested purposes that I specified in my report
were very much a first effort. I expected there to be considerable
thought, discussion, consultation about what the final product
should be and I believe there has been.
148. Have you see the final product so far in
draft form? Have you anything to add to the debate?
(Lord Scott of Foscote) Not of substance, no.
149. The purposes seem to be related to the
imposition of export controls by Orders rather than by the actual
licences. Your report raised the question of whether the licensing
system should be used as an instrument of general foreign policy.
Does the Schedule solve this problem?
(Lord Scott of Foscote) Yes, coupled with one other
thing. I thought it essential that refusals of licences, and perhaps
grants of licences too, should be accompanied by reasons. Certainly
refusals, but thinking about it perhaps grants also ought to have
a restatement of reasons attached to them so that it is then transparent
that the reasons are within the purposes. The Government has been
much more forthcoming in the years since 1996 in responding to
questions and giving information about its export licensing decisions.
I mean particularly where the decisions where licences are granted
as opposed to being refused. If that welcome trend continues,
and I do not see any reason to suppose that it will not, it will
be possible for Members of Parliament to see whether there have
been licences granted that are within the purposes or whether
they have been granted for some other purposes, such as the foreign
policy purposes that you mentioned.
150. Often, of course, the more explicit one
is in giving reasons for one's judgment the more open one can
be to challenge. I am thinking specifically of the possibility
of judicial review. Do you think this is likely to happen?
(Lord Scott of Foscote) Your comment is perfectly
right, but provided the reasons fall reasonably within one or
other of the purposes I would not expect them to be open to successful
challenge. You have to qualify it by that adjective because there
is nothing that can stop people making challenges.
151. A reason outside the Schedule might be
subject to challenge?
(Lord Scott of Foscote) A reason outside the Schedule
might be and deservedly might be.
152. I am thinking of a case where perhaps a
licence is refused to country A because of the likelihood of a
more attractive contract with country B.
(Lord Scott of Foscote) I think that was an example
I gave in the report. Now, I do not believe that reason could
be justified under any of the purposes in the Schedule which would
require some pretty special pleading if that was not the case
but, of course, circumstances alter cases. Maybe somebody could
make out a case for saying some such reason could be brought in
particular very special circumstances within one or other of the
Schedule purposes, but I doubt it.
153. Would you regard it as being within your
remit to say whether you would welcome a broader use of judicial
review?
(Lord Scott of Foscote) What, in general?
154. Yes.
(Lord Scott of Foscote) I think I would leave that
to the lawyers.
155. Fair enough. Would you expect to see and
would you think it appropriate for non-governmental organisations
to challenge decisions?
(Lord Scott of Foscote) Do you mean people like Amnesty?
156. Yes, and Oxfam, the various bodies which
appeared before us this morning?
(Lord Scott of Foscote) Of course, they have a locus
standi procedural ability to do that within limits under present
procedures. They can only do it with permission given by the court
and they would need to have a sufficient case to justify the getting
of permission. If non-governmental organisations can show a sufficiently
arguable case to obtain permission to move for judicial review
they ought, in my view, to be allowed to do it in relation to
decisions regarding export controls as with any other governmental
decisions.
157. Your report referred to the fact that there
were remarkably few challenges to the 1939 Act before 1990. Would
you envisage there are likely to be more?
(Lord Scott of Foscote) I do not think I have any
particular expectation about that. I think that will depend very
much upon what the reasons look like, what the answers to Members
of Parliament who ask questions about these matters are.
Chairman
158. Ms Baxendale, do you have a view about
judicial review? Is this piece of legislation likely to spawn
more judicial review?
(Ms Baxendale) I believe requiring Government to give
reasons is a very good idea because it clarifies the reasoning
of the decision maker. I would expect that there probably would
be more judicial review but whether it is successful or not depends
on the reasons for the decision taken. I do not see it as a bad
thing in the sense that I think giving reasons enables also those
who receive the decision and other parties, such as non-governmental
organisations, to know the reasoning process and to decide in
some cases "yes, we thought it was a bad decision, now we
understand the reason why we believe it is a good decision".
I suspect though that you will be asking Lord Scott about Clause
3(2)—
159. Yes.
(Ms Baxendale)—which may have other answers
to that.
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