Examination of Witnesses (Questions 180
- 195)
WEDNESDAY 25 APRIL 2001
RT HON
LORD SCOTT
OF FOSCOTE
AND MS
PRESILEY BAXENDALE,
QC
180. Yes.
(Lord Scott of Foscote) When I wrote the report I
asked myself whether I should recommend deemed refusals or deemed
grants. I thought that deemed grants would be a greater spur than
deemed refusals.
181. Better than nothing.
(Lord Scott of Foscote) You can do it by deemed refusals
and then have an appeal. Then you would need a proper appeals
procedure, not just the departmental officers who had been sitting
on the original application then constituting themselves as an
Appellate Tribunal.
Chairman
182. Your own report suggested it should remain
in the hands of senior officials but who were not the same officials
dealing with the thing.
(Lord Scott of Foscote) That is right. I am not sure
that proposal in my report would still be satisfactory after the
incorporation of the European Treaty on Human Rights because the
independence of the Appellate Tribunal might be called into question.
Chairman
183. There are two other issues which have arisen
and will be quite central to the debate. One is on end use and
the other is enforcement, which includes the possibility of licensed
production abroad.
(Lord Scott of Foscote) Yes.
Mr Berry
184. The question on end use controls is straight
forward. It is that based on your study of the Iraq cases, can
end use controls be strengthened in law because clearly there
is great concern about the end use monitoring?
(Lord Scott of Foscote) Can they be strengthened in
law?
185. Yes.
(Lord Scott of Foscote) I am not sure. Certainly the
licensing authorities—DTI, MoD—should ask the most
searching questions about end use and should not dream of granting
a licence unless the questions are properly and fully answered.
If they are answered truthfully and fully then there ought to
be all the information available about end use. The possibility
that the purchaser is going to do with the machines or with the
goods something that if known in advance would have led to the
refusal of the licence is often going to be something which you
cannot control. I do not think one could make the exporter responsible
for some diversionary activity of the purchaser that he, the exporter,
genuinely did not know about or had any reason to suspect would
happen. I think in cases of this sort, where there is reason to
fear in a general way diversion from the particular consignee
or from the country of the consignee, the licensing authority
will need to rely on intelligence as to what might happen to the
goods and take that into account in deciding whether or not to
grant the licence, whether or not to take the risk.
186. Essentially the end use monitoring which
would take place subsequently, should that take place, is an administrative
matter but you cannot anticipate any measures in law? It is clearly
a concern.
(Lord Scott of Foscote) The end use monitoring could
lead to different decisions being taken on subsequent applications.
I do not think the end use monitoring could be used in order to
prosecute the exporter for what had actually happened to the goods
unless you could show that it was something that he knew, or ought
to have known would happen, or he had given some false answer
in his answers for the purpose of getting a licence.
Chairman
187. The Bill proposes new offences in two other
areas. I do not know how they connect with your report but anyway,
irrespective, may I prompt you to give us your advice. The first
is the whole area of brokering and the second is the growth of
licensed production abroad.
(Lord Scott of Foscote) Yes.
188. There is a lengthy discussion on pages
19 and 20 of the consultation document about the whole business
about how you can further control licensed production. Have you
any thoughts on those two key additional areas? The Bill goes
beyond Scott, if I could say, in addressing the issues.
(Lord Scott of Foscote) Yes, it does. I think controls
of that sort are a very valuable addition to the armoury of controls
which Government has. I am sure that there are a number of cases
where Government will be glad to use those controls in order to
prevent trafficking, brokering, production abroad in circumstances
where the goods being produced or being trafficked would not have
been the subject of an export licence to the country concerned
if the goods had been in this country. If I may say, I support
the introduction into the Bill of controls in those respects.
How they are going to work in practice is another matter. I think
there has probably got to be a good deal of work on the infrastructure
of enforcement which at the moment one cannot see in the Bill.
189. I wonder if you or Ms Baxendale have any
views about the options that are proposed in paragraph 77 on licence
production? There are two.
(Lord Scott of Foscote) Paragraph 77?
190. Page 20. I just wondered if either of you
had any reflections on these options? This is new territory from
a legislative point of view.
(Lord Scott of Foscote) Yes. I do not see a great
deal of difference between the two options. Either seems to me
to be a good idea. To what extent they will be effective, again
it is a matter of a certain amount of doubt. What would be the
remedy for a breach? This comes back to a point we have already
discussed. You would come back to a situation in which it would
be the overseas company that would have broken its undertaking.
You could not prosecute effectively in this country that overseas
entity, particularly if it was the Government of the country that
had been responsible for it. You could store up the knowledge
for the purpose of dealing appropriately with any future licence
applications for export to the particular country involved but
beyond that I am not sure what remedy there would be. I do not
believe we will be seeing in this country any claims for damages
for breach of undertaking in this sort of area.
191. Finally, on enforcement. I just wondered,
given also the whole extension of legislation to intangibles and
the transfer of information by all means, by e.mail, by fax, by
all the modern means of transferring information, it multiplies
the problems of enforcement in all sorts of ways. Do you think
the enforcement authorities are likely to say "Yes, Parliament
has demanded this type of power on brokering on these issues and
therefore we need more power. More power to intercept, more power
to intervene, to get to and get at this information" and
there could be a really interesting conflict between civil liberties
and enforcement in these provisions?
(Lord Scott of Foscote) I see that, particularly bearing
in mind that one is speaking not only of things done in this country
but also things done in foreign countries. I do not know that
I have ever looked at it. I do not know whether Ms Baxendale knows
what sorts of powers are needed for the purpose of authorising
the intelligence agencies to carry out surveillance operations
in foreign countries. There probably are not any empowering provisions
one needs for that, they just do it under their general remit.
192. I am thinking in the UK context.
(Lord Scott of Foscote) In the UK context I think
there probably are human rights implications.
193. Ms Baxendale?
(Ms Baxendale) I would have thought that there must
be and it would be likely that the Government would seek further
powers. I do not think that detracts from the benefit of setting
up the offences but I think it is going to be very difficult.
It will be a balancing exercise between protecting the relevant
human rights. That ties back into how there seem to be more human
rights implications under the Human Rights Act than perhaps had
been initially envisaged in relation to all this.
(Lord Scott of Foscote) There are very, very stringent
controls, as I am sure you will know, on Government's power to
authorise, for example, phone tapping, interception of that kind
in this country. If there are going to be any extra powers Government
asks for or gets given in this connection, I am sure they will
be subject to similar sorts of safeguards.
194. Thank you very much indeed. I am so grateful
to you. Thank you for coming along.
(Lord Scott of Foscote) Thank you. It has been very
interesting.
195. The Bill will arrive with you some time
soon. Thank you very much indeed. I will, if I may, develop our
case on prior parliamentary scrutiny to retrieve the situation.
(Lord Scott of Foscote) Yes.
Chairman: Thank you for coming.
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