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2.15 pm
The advice identifies three reasons why it is important to include sustainable development in the schedule of purposes. It states that the purposes can be changed only under the affirmative resolution procedure, so a Government could change them only with prior parliamentary approval, whereas the guidance can be changed without reference to Parliament other than it being informed at some unspecified time after the event. The DTI has stated that sustainable development will be protected as it is one of the criteria in the EU code of conduct on arms exports, and in Committee the Minister said:
- "Even if a future Government tried to withdraw guidance issues under clause 8"—
- "the EU criteria would continue to apply".—[Official Report, Standing Committee B, 17 July 2001; c. 47.]
- "it would be hard to maintain this argument in the face of an express decision to remove the Code from the guidance"
- "even at the EU level the Code does not have legal force."
Secondly, as an export order or transfer order can be made only for a purpose as elaborated in the schedule, excluding sustainable development from the schedule means that an order could not be made for the purpose of sustainable development. Our advice states:
- "However much other matters have to be taken into account, they cannot justify making an order for a purpose which is not listed in the Schedule."
In conclusion, the legal advice suggests that removing sustainable development from the schedule places it in a weaker position than other criteria under law. The omission denies a future Secretary of State the power to introduce controls to protect sustainable development, even if he or she wants to do so. It also means that he or she could remove sustainable development altogether as a consideration, with minimal parliamentary oversight. I thank the House for allowing me to read that advice, as it is important that it is on the record.
We should not have to keep on spelling out the importance of sustainable development. Yesterday, the House debated the International Development Bill: sustainable development, whatever definition is used, is central to that Bill and dear to the hearts of the Secretary of State for International Development and her junior Minister. That Bill was given its Second Reading without encountering any dissent from hon. Members, so it is abundantly clear that sustainable development is close to the hearts of all parties.
Sustainable development is on the face of the International Development Bill. If the Government believe in Departments working together, and if they believe in the joined-up government about which we hear so much, those words must appear on the face of the Export Control Bill, to ensure that no future Secretary of State can interpret the guidance in a different way and bypass crucial sustainable development.
Vera Baird (Redcar): I support the amendments tabled by my hon. Friend the Member for Clydebank and Milngavie (Tony Worthington). I emphasise in particular my support for amendment No. 34 on sustainable development. I do not propose to repeat the arguments advanced by hon. Members on both sides of the House in respect of that amendment; instead, I will make two minor further points.
It is my view—I invite the Minister to consider it—that the existence of the words "sustainable development" in the consolidated criteria, together with the fact that sustainable development is the only one of the consolidated criteria that is left out of the statutory schedule, make it next to impossible to imply into the schedule a power to legislate to protect sustainable development. It is all too clear that it
has been deliberately, obviously and openly omitted. I suggest that seeking to imply it back in by an indirect mechanism will not work.I ask the Minister to note that that is not only the view of Matrix chambers, well known and important as it is. It is also the view of the researcher who produced the paper in connection with the schedule, which is in the Library. It states that if there is not a reference to sustainable development in, then it is wholly out and cannot be implied in. The researcher says that the schedule sets out the purposes of export control in legislation, and it limits controls to those purposes and no others.
There is also the argument—it is exactly the argument advanced by the Minister—that is now propounded in support of amendment No. 34. My hon. Friend put it forward against amendment No. 38. He talked about that amendment setting out a list of nuclear, chemical and biological weapons, and that being a dangerous course because if such a list is put into the Bill, anything that is left out cannot be covered. That argument applies exactly to leaving out sustainable development from the list in schedule 4.
I do not like the term "hoist by one's own petard", and it is not appropriate in this instance, but will my hon. Friend seriously reconsider the matter and provide an explanation? If he will not seriously reconsider the position, why is the obvious need for the term "sustainable development" to appear in legislation not to be recognised? It is clearly the Government's intention to have regard to it. They have put themselves in an inextricably complex position. The simple way out is to add the phrase to the schedule.
Dr. Vincent Cable (Twickenham): Many of the key points have already been made by Members on both sides of the House, so I will not delay the House. I shall merely make a few additional points.
I speak in support of the Conservative amendments, which are important and echo a theme that ran throughout our discussions in Committee. Whatever our views about the arms trade and necessity for controls—there are different views about those matters—parliamentary scrutiny is essential. Later, we shall discuss the core issue of prior scrutiny. In the absence of prior scrutiny, the point has been made by the Members representing all three parties that were represented in Committee that there would be considerable merit in escalating the level of parliamentary scrutiny generally. It was thought that the negative procedure is too weak, and where possible it should be replaced with delayed action; and where there is delayed action, it should be replaced with affirmative action. That is the substance of the Conservative amendment, which is a useful one, and I hope that the hon. Member for Salisbury (Mr. Key) will pursue it.
I move on to cumulative effects, which are taken up by amendment No. 36. My hon. Friend the Member for Richmond Park (Dr. Tonge) made the point well. The current crisis underlines the necessity for having such criteria built into legislation. We are on the brink of at least one new arms race between India and Pakistan. Under current proposals, every export application would be considered individually. However, the problem when there is an arms race is knowing precisely when the cumulative effect is getting out of control.
An individual contract taken in isolation may be beneficial or neutral in its impact, but the exporting country might want to say that the point was being reached where the arming of Pakistan or India, or both, was getting out of control. The cumulative effect is what we must consider.
Similarly, the economic environment is changing rapidly. If there is a major economic shock leading to falling commodity prices, the effects of deteriorating international economic conditions will quickly undermine the conditions under which, for example, the heavily indebted poor countries have had debt relief. The position of many western hemisphere countries, including those in Latin America, is precarious. Only yesterday, I saw figures showing that the debt service to export ratio of many of those countries is close to what it was before the defaults of the 1980s. Adverse international economic conditions could well precipitate a crisis in both groups of countries. If that is the case, we need to consider not just individual export contracts in isolation, but the overall effect of large volumes of arms exports going through the process and destabilising countries' economies. The cumulative impact therefore needs to be built into the language of the Bill.
We have had a detailed exposition of the legal advice on sustainable development that is now available, but was not available in Committee. "Sustainable development" has become a buzz phrase. I was involved in writing the Brundtland report, so I have a vested interest in its interpretation of sustainable development. The key point is not whether or not we accept that definition, but that sustainable development is becoming institutionalised. The International Development Bill builds sustainable development into our legislation. We have passed the point at which it is simply an issue to be discussed by people involved in development; it is now becoming part of public law, and should be recognised as such.
The core point about sustainable development is that if, in future, Ministers wish to introduce export controls on the grounds of sustainable development, they will not be able to do so under current legislation; there are no powers for such action. If, on the other hand, they were succeeded by other Ministers who had little interest in the subject or, indeed, held it in contempt, those Ministers could simply dismiss any sustainable development criteria with perfunctory parliamentary scrutiny. Sustainable development should therefore be built into the Bill. It is inexcusable that the Government should have difficulty with that phrase; indeed, it is inexplicable. I suspect that someone in the Department decided that they did not want woolly-minded environmentalists getting in the way of hard business decisions on arms exports, and decided to strike sustainable development from the Bill. Having done so, they have landed the Minister not only with political, but legal, problems. I hope that he will think about that again.
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