Examination of Witnesses (Questions 160
WEDNESDAY 25 APRIL 2001
160. For example, would some of the Iraq decisions
have gained from being subject to the judicial review procedure?
(Ms Baxendale) It is very hard to see how at the time.
I can understand why judicial review was not brought at the time
because, first of all, life has moved on since then but also under
the Act it was very hard for anyone to challenge the decisions.
In the time that has passed since the mid 1990s, early 1990s,
I think the public and contractors are much more aware of how
they should ask the decisions and they should ask for reasons
whereas before there was more of an acceptance. Also, because
of the purposes that are set out in the Schedule, it is less likely,
I would hope very unlikely, that you will have the kind of decisions
being taken for reasons that are not necessarily what one might
expect if you were the exporter.
161. Can I just return to the point Mr Viggers
was pursuing with Lord Scott. We have in the Schedule the list
of purposes. For example, a governmentlet us take something
quite recent in our minds, the sort of growing abuse of human
rights on farms in Zimbabweif they thought that as a response
to that situation it should refuse licences for arms to the Zimbabwean
Government, that currently would not I think fall within the present
Schedule purposes. That would be what Mr Viggers was calling a
general foreign policy point as opposed to a specific purpose.
The Fatwa and Bazoft examples would be other illustrations. Do
you think the Schedule purposes should include a provision that
would allow this type of decision to be taken?
(Lord Scott of Foscote) I think it is quite dangerous
to include a purpose of that sort because it would be very difficult
to limit it. Looking at the purposes that are there, I suppose
the nearest one gets to it would be D(d) but then there would
not necessarily be a connection between the arms and the human
right breaches with regard to the farms that one would be talking
162. You would not argue selling Hawks to the
Zimbabwe Government was directly related to the issue of abuse
of human rights?
(Lord Scott of Foscote) I suppose that is the sort
of area which might lead to a decision by government to have an
ad hoc addition to the purposes brought about under the power
conferred by the proposed Section 3(2).
163. I see. Right.
(Lord Scott of Foscote) In which case there would
have to be affirmative resolution procedure and both Houses of
Parliament would have to approve it.
164. Ms Baxendale has prompted me to ask the
question. 3(2) is a curious provision, seemingly so. It is a temporary
right to oppose licences outside the Schedule.
(Lord Scott of Foscote) Yes.
165. I was wondering did you think that was
too wide or do you think that with the affirmative resolutionthe
temporary nature of thatthat actually is a sufficient safeguard?
(Lord Scott of Foscote) I think it is fine with the
affirmative resolution procedure. Parliament is in control as
Parliament ought to be.
166. Ms Baxendale, any views on 3(2)?
(Ms Baxendale) Perhaps I am slightly less sanguine.
167. Could you explain how?
(Ms Baxendale) I am concerned about the examples given
by Lord Scott in his recommendations of times when there seemed
to be a confusion between using foreign policy requirements against
individual exporters. It does seem to me those kinds of examples
come within the kind of emergency that Government might see and
might want to use 3(2) for. It is very difficult. The affirmative
resolution procedure should be a guard against misuse but I may
be slightly sanguine.
168. You are uneasy?
(Ms Baxendale) I certainly am uneasy about 3(2).
Chairman: The other area which you recommended
which has not been pursued and has not gained a great deal of
support, if I may say, in quite a lot of the evidence we have
received is the way in which you wish to build the administrative
procedures in on a statutory basis.
169. I can claim a small input into your Arms
to Iraq inquiry. I think it was The Guardian which described
my question to the Prime Minister as the "grassy knoll"
in the issue of whether the policy had been changed or not. I
want to pick up on administrative procedures. You did suggest
putting a number of administrative procedures for licensing on
a statutory basis. The response that we have had clearly here
with the consultation on the Bill is not to do that really, it
is a mixture of secondary legislation and guidance. Are you happy
(Lord Scott of Foscote) Not very, no. I think it would
have been better if it had been put on a statutory basis. I think
alsoand I must acknowledge my indebtedness to Ms Baxendale
for making the comment about it which prompts this remarkthat
since the Human Rights Act 1998 came into effect it is very important
to have procedures in place for deciding issues and appeals which
are capable of being defended as being fair. The rather ad hoc
appeal procedure which was in place in the period I was looking
at for the purposes of my report are, as I understand it, going
to be continued without any radical changes and without any particular
thought given to what conceivable challenges to those procedures
might be raised. I think that is something which the Departments
may need to give a good deal more thought to because applicants
for licences are entitled to have their licences dealt with in
accordance with procedures which are certain. There is the requirement
of certainty. If there are going to be appeals I can see arguments
being raised that the Appellate Tribunal should be an independent
one and not simply composed of officials from the Ministry who
have turned down the application in the first place. This may
also apply if there is any form of ability for any third parties
to object to the grant of licences. I think we are rather getting
into a situation where departmental adjudications really are not
going to be satisfactory any more, particularly at the appellate
stage. I think the Government may need to pay more attention to
170. I think that is a significant answer. I
think it is one we might need to follow through when we consider
our report. Can I pick you up on another point that you recommended.
You recommended this licensing by default.
(Lord Scott of Foscote) Yes.
171. When it had not been dealt with in a certain
timescale. In the response again from the Government they basically
say that would not be satisfactory in relation to other purposes.
(Lord Scott of Foscote) My recommendation about licensing
by default was prompted by the inordinate time that some licence
applications had been left pending before a decision on them had
been taken. I do not know whether any Members of this Committee
have ever been lobbied by their constituents in order to try to
get some sort of action on licence applications which appeared
to be simply sitting on somebody's desk and not progressing. It
is clearly wrong that state of affairs should be allowed. The
only solution that I could think of was the default licensing
situation in which the Ministry would in effect have to refuse
the licence in order to avoid the default licence being granted.
There could then be an appeal and the matter could be, as it were,
by force, progressed. I can see the objections to it. If there
is a better way of making sure licences are dealt with properly
and within a reasonable time limit, fine, but I could not think
172. Thank you for that explanation. I think
clearly we all favour prompt decisions. It is the worry they might
be approved when they should not be which is a concern. I take
the key point. The third point on this is this issue of you consider
that where there is a refusal there should be in writing an explanation.
Again, the Government say they do that or in the main they do
(Lord Scott of Foscote) I think they should be required
to do it as well as doing it ex gratia.
173. Can I tease out one point. On the issue
of national security, they tend perhaps not to give an explanation
or a very feeble one if they maintain national security is involved.
Is there something there?
(Lord Scott of Foscote) There may be. If the reason
for refusing a licence is a national security reason reached because
of intelligence which the Government has had access to then plainly
you cannot say anything more than there are national security
reasons for refusing it. Nobody could expect more than that. There
has to be the ability for the Government not to disclose the intelligence
foundation for the decisions they reach, if that is the reason.
174. A judge presumably could see those, could
he or not, in certain circumstances
(Lord Scott of Foscote) This gets back to another
area really. I suppose so. If there was judicial review challenge
and a request for discovery and a public interest immunity point
taken to resist the discovery, the judge presiding could look
at the documents in order to see what their substance was, yes,
175. A final question, not so much about the
administrative procedures but generally about the proposed Bill,
and seeking your advice on this particular point, bearing in mind
your great legal expertise. It does not actually contain any offences
in it directly. It has controls but there are no offences. They
are all to be dealt with in some secondary manner without parliamentary
discussion, no discussion in some cases in Parliament. You have
mentioned the Human Rights Act before
(Lord Scott of Foscote) I thought there was something
in the Bill about offences. There is certainly something about
176. They are to be spelt out in subsequent
Orders. I do not think they are specific offences in the Bill.
(Lord Scott of Foscote) There is a provision which
177. Clause 7, is it?
(Lord Scott of Foscote) That is right, yes. Breaches
of export controls are to be dealt with now, as previously, by
Customs and Excise. The Customs and Excise Management Act of whatever
the year is, and I cannot now remember, creates its own offences
for offences against the breaches of the Customs Acts. The Bill
provides for this Act to be one of the Customs Acts so that will
bring in the offences, at least I think it will, under the Customs
and Excise Management Act. The loose string is that although Customs
and Excise is said to be the enforcement agency for export controls,
it is not said to be the enforcement agency for transfer controls
or for the transaction controls which are both novel in this proposed
Bill and which were not contained in any previous controls. I
have been wondering what the enforcement agency is going to be
178. Good point.
(Lord Scott of Foscote) I imagine it is not going
to be Customs and Excise or there would be the express mention
of those controls as one of the export controls in the Bill, in
which case it will be the ordinary police and the DPP, perhaps
Serious Fraud Office, depending on the nature of the circumstances.
In relation to these other controls, where the creation of the
offence will be found is not clear, I think. Obviously for those
the Customs and Excise Management Act offences will not apply.
Chairman: That is a very good point for
us to pursue.
179. Can I take you back to the issue of default
licences. I am grateful to you for telling us really that your
thinking behind that was there was no other way of somebody forcing
a decision out of the Government and you were using the default
system in that way. If you look at what happens under the planning
law, in a sense the default system does not mean you get your
planning permission but what it means is that if you have not
had a decision on your planning application then you can appeal.
Do you think some system like that might help because there is
tremendous pressure at the moment from exporters who cannot get
decisions? We heard this morning of a case where somebody had
been waiting for over three years just to get a decision.
(Lord Scott of Foscote) That would be a deemed refusal
as opposed to being a deemed grant.