Examination of Witness (Questions 220
WEDNESDAY 25 APRIL 2001
220. May we turn to the issue of the Schedule
of purposes which we all agree is actually a ground breaking piece
of legislation. This is the first time there will be in British
law a Schedule of purposes of the kind that you are suggesting.
Therefore, the fact that we may ask for more or seek to expand
in many ways, Secretary of State, I hope is not too curmudgeonly
(Mr Byers) I would expect nothing else.
Chairman: It is Oliver Twist by nature.
Harry Cohen is going to continue with some of the additional points
221. I welcome very much the Schedule of purposes.
At this stage it is reasonably comprehensive, although over time
no doubt it will need to be added to, I think. Could I ask why
the purposes in the Schedule apply to the Orders made under the
Bill but the licences are left entirely to Ministers? Do you see
any merit in giving the Government criteria and the EU Code as
well at least some statutory backing, at least as "guidance"?
(Mr Byers) I think in relation to the European Union
and the national licensing criteria the important point about
having the inclusion of the purposes in the Bill is it will establish
parliamentary control over the purposes for which the legislation
can be used. I think introducing that through the purpose route
will make a real difference and hopefully overcome the sort of
concerns that you might have. If we do it that way, and have running
along side of it the licensing regime, then that, I would hope,
would overcome some of the reservations that people might have.
222. Let us put it this way then and look at
it the other way round. Would you envisage that every time licences
are dealt with in an administrative way the purposes are fully
taken into account? They would not produce licence decisions that
fell outside the purposes?
(Mr Byers) My understanding is it would
have to be within the purposes.
223. Can I move on then to general purposes.
The Scott Report raised the question as to whether it was proper
to use export controls as a weapon of general foreign policy.
He raised the point of Mr Bazoft's execution. Are these general
purposes enough to give you flexibility and enough freedom to
perhaps make export control refusals on this more general basis?
Let us just give you an example: Zimbabwe. Would what is happening
there to farmers, would the Bill and the purposes in there give
you enough flexibility?
(Mr Byers) I think so. A lot will depend on the detail
and the way the purposes are drafted in terms of making sure that
they have that degree of flexibility and clearly that is something
that we would want to be able to do. It is worth stressing though,
I think, that nothing is ever fixed and there are always circumstances
that arise that, as we sit here in April 2001, we may not foresee
for the future, or Parliament when it legislates and introduces
the purposes may not have in mind. There always has to be an opportunity,
if you like, to expand the purposes which are in the Bill or in
the Act. There is a vehicle to enable us to do that. We think
at the moment that there is the flexibility but if it proves not
to be the case then there are two ways in which we can do it.
We could either ask Parliament to approve a new purpose, which
would be amending the legislation, or we would ask Parliament
to approve an Order under clause 3(2). Those are two opportunities
in which we can have an even greater degree of flexibility although,
I have to say, I think the way in which purposes are worded at
the moment I would expect them to be able to meet the sort of
foreseeable eventualities that might be there.
224. If I can pursue Mr Cohen's point. We did
take some evidence from Lord Scott on this point. A refusal of
a licence on general foreign policy grounds as opposed to the
very specific purposes of this particular schedule, is that why
3(2) is there? 3(2) is a wide and sweeping right to introduce
Orders outwith the purposes, albeit for a temporary period and
subject to affirmative resolution. Is 3(2) designed for this type
(Mr Byers) As you know, it is time limited, it is
for 12 months subject to affirmative resolution. To be honest,
it is for things that we do not foresee. The purposes we think
are wide enough drawn to have the flexibility but there may be
a view, there may be a legal opinion, that that is not the case,
in which case we would need to come back to Parliament
225. It is a belt and braces catch-all provision?
(Mr Byers) It is really, yes.
226. In the Green Paper there was one other
purpose that seems to have been dropped completely and that was
"to avoid re-export or diversion of goods likely to prejudice
purposes (a) to (i)", in other words relating to the end
use issue. Why did that disappear from sight?
(Mr Byers) We have looked very carefully at the whole
area of end user requirements and the view that we have come to,
although I have to say this is an area that I very much hope that
we can consult on during this consultation period, is that the
measures that we already have in place will be sufficient. There
are a number of areas in terms of the consultation that we are
going through that I think are very important and actually end
use happens to be one of them. We have got to ensure, and I am
very clear about this in my own mind, that we cannot allow people
to abuse the system. Sometimes in terms of the way the end user
system works we have to be absolutely vigilant that people are
delivering on the commitments that they have given to us. There
are different ways in which we can do that and as part of the
consultation process I do hope that people will respond on the
issue of end use, which perhaps is not flagged up as much in the
consultation document as it should be, but I have indicated in
comments I have made since publication that end use is one of
those areas where we would welcome people's views.
227. On these purposes, would you envisage the
purposes applying to government to government transfers? Because
I notice in the proposed Bill that there is not any provision
to bind the crown as in some other Bills, like the International
Criminal Court Bill. If it were there then the purposes would
apply to government to government transfers, would that not be
(Mr Byers) We do not intend to change the provisions
in relation to Crown immunity with regard to the provisions contained
within the Bill.
228. I hear what you are saying but that is
worrying though. Would the purposes set out here apply to government
to government transfers?
(Mr Byers) My understanding would be that because
of the Crown immunity provisions that would be outwith the provisions
contained within the Bill.
229. They would be subject to the spirit of
the purposes. You would not transfer a government to government
transfer that obviously offended the Schedule of purposes?
(Mr Byers) It is a legalistic argument. One would
hope within the spirit of what the Government has legislated for
that the Government itself would adopt those principles in relation
to its own dealings.
230. Minister, can I just press you on this
end use issue and ask you whether you have got any doubt, or your
legal advisers have expressed any doubt, that you could withdraw
a licence which had not been used in full where a breach of end
use conditions had happened or where there had been a change of
circumstances in the recipient country? I will cite a very specific
example which is that at the current moment the Israeli armed
forces are using weapons that would have been sold to them in
the expectation that they would be used against other armed forces
and they are actually using them against civilians. In that sort
of case, if it were shown that UK components were being used in
that way, is there any doubt in your mind or in the minds of your
legal advisers that you could revoke a licence in those circumstances?
(Mr Byers) Without going into details of an individual
licence, because I am not on top of the particular details, we
are very clear that people need to comply with end user requirements.
We would want to take whatever appropriate action we can if clearly
someone is failing to comply with the agreement they have entered
into as part of the licence, and end use is part of that.
231. Would that also cover a situation where
permission had been given for combat weapons and then those combat
weapons were used against civilians?
(Mr Byers) That would depend on the nature of the
end user agreement.
232. So if it had not been foreseen at the time
when the licence was granted, are you saying that there would
be no way in which Britain in that hypothetical example could
stop arms it had sold to such a government in fact being used
against civilians? Is that what you are saying?
(Mr Byers) I think there is little that can be done
in that particular example. What we would clearly do is if there
are further licences that we need to consider then those activities
would be taken into account in determining our decision in relation
to those licences.
233. And you do not think there is any way in
which this draft Bill could be amended so as to take account of
(Mr Byers) I have to say, I think once the licence
has been issued and the arms have been supplied in accordance
with the licence then it becomes very difficult to take actions
in relation to those particular arms. That is the practicality
of it. Whether there is anything in terms of primary legislation
that can change that, I have to say I cannot see what we can do.
What we can do is in relation to any further applications that
we might have from an applicant who has exported arms previously
and this will be an issue that is taken into account. I think
it is no secret that there are particular applications for particular
countries that we scrutinise in far greater detail because of
the sensitivities of a particular area or a particular region.
In doing that we do take into account the way in which previous
licences have been used.
234. I think Dr Starkey was asking in a situation
where a licence had been granted and had been partially fulfilled,
where material had been sold and delivered under the licence but
had not been completed and in that situation you either find there
has been a breach of the end use, that some of this material has
gone elsewhere and should not have, or indeed there has been a
change of circumstance in the actual recipient country. We are
unclear still as to whether the Government has a legal power to
revoke the remainder of that licence. Could we just get clarity
that that is the case?
(Mr Byers) Let me think of a hypothetical situation
which may help. If we grant a licence for a
(Mr Byers) Without mentioning a country. If we say
for 100 rifles and 50 had been supplied and it then transpires
that they are being used in a way which contravenes the provisions
of the licence then we could revoke the licence at that stage
and stop the remaining 50 being supplied under the licence. We
can do that. There is a power to revoke the licence. The difficulty
we often have, of course, is the arms are already there. If we
have, say, a two stage licence then there is a power to revoke
the licence if during the first stage there is clear evidence
that the applicant is not complying with the provisions of the
licence and then we can stop any further supplies being sent out.
236. In a further hypothetical case that because
the recipients seem to be entirely okay at the point of the initial
sale and conditions were not actually placed limiting its use
against bona fide targets and then it is used in a way in which
the licence would not have been granted if they had asked for
it in that way in the first place and it is only half way through,
could you revoke it in those circumstances?
(Mr Byers) It depends on the terms of the original
licence. Without knowing the terms I would not be able to comment
in detail. There is a power to revoke.
237. There would be a much more interesting
set of circumstances if a number of armoured personnel carriers
had been supplied to an unnamed country and quite clearly it was
abusing the end use certificate by using these for crowd control,
and a separate completely different licence is applied for by
another company wishing to export to that country. Would you then
take account of the abuse of the end use certificate in the first
supply of the scout cars and refuse a licence for other arms to
be supplied by another company completely?
(Mr Byers) We judge every single case on its own particular
merits and we take into account the conduct of the country, the
circumstances in which any particular licence or any arms being
exported would be used for. I knew I should not have put a hypothetical
example because there is a danger that we all have examples. I
think all I can say, and this may not be terribly helpful, is
that we would judge every case on its own merits. We would not
simply say that it would definitely be refused, we would still
look at and would take into account the circumstances surrounding
the way in which arms had been used under previous licences. It
would be a factor that would be taken into account.
Mr Viggers: It is an example of where
clause 3(2) might be useful.
238. I think a hypothetical example is actually
very illuminating in relation to Phyllis Starkey's point because
on a licence where half the equipment had been exported and half
the equipment remained to be exported, whether there would then
be a revocation of the licence would depend on the initial conditions
of that licence. The issue then amounts to the conditions under
which the licence was granted in the first place, which suggests
to me that you would wish to place an enormous amount of attention
on ensuring that the conditions for licences are drafted tightly
and not otherwise. Is that your intention?
(Mr Byers) I think there is merit there. It was particularly
in relation to the end user provision that was being referred
to. There are terms under which licences are approved and we expect
the applicant to comply with those terms and if they fail to do
so then there is a power of revocation.
239. The licence holder is well aware of the
implications for his or her company of breaches of end use conditions.
That is the case, is it not?
(Mr Byers) Yes.