Squaring the circle
25. Current legislation controls the export from
the United Kingdom of military goods and of dual-use goods with
a potential military use, as well as military technology in physical
form and dual use technology in physical or electronic form. Any
such export is illegal if not covered by a Government licence.
The Government's proposals, as outlined above,[20]
essentially extend this existing system of control to a variety
of other transactions, such as the transfer of military technology
in electronic form, and trade between overseas countries. But
there are very real difficulties in doing so. Under the new proposals,
it is not always straightforward to identify what sorts of transaction
require a licence. Even when this is known, it is not always evident
that a licensable transaction has taken place. Finally, there
may be problems for the Government in establishing whether the
law is being complied with.
26. It is relatively straightforward to impose controls
on the export of goods from the United Kingdom: it is clear
both to the Government and to the exporter at what point the export
occurs, and therefore at what point a licence is required; and
it is relatively easy to police as part of the normal duties of
Customs and Excise officers. It is less straightforward for the
United Kingdom to impose controls on the export of goods from
another country: it is still clear at what point an export
occurs, but it may not be clear to the exporter that a licence
is required from the United Kingdom; and the British Government
is only likely to discover that the export has taken place where
it has very close inter-governmental links at the right level—or
other sources of intelligence.
27. When it comes to the transfer of military
technology in electronic form, it becomes yet more problematic
to apply the same standards as for physical exports: it is not
at all obvious when sending an e-mail where in the world the recipient
will be when they read it; although, in terms of evidence, tracing
an electronic communication may in some instances be easier than
tracing the route of a physical object.
28. Finally, it is proposed to impose controls on
acts "calculated to promote the arrangement or negotiation
of a contract for the acquisition or disposal of controlled goods"
between two overseas countries.[21]
Such an act might be, for example, putting a potential customer
in touch with a potential supplier in return for a fee. But this
would occur prior to any export taking place—and it might
be that no export in fact would take place. In such a situation,
it would not be an export that was licensable at all, but
another thing entirely. At what point would a licence be required,
and how would either the potential licensee or the Government
know that that point had been reached? And how would the Government
seek to show that a licensable act had been illegally carried
out? These are questions that we discuss further below. The basic
point is that export itself cannot be used as the test here of
whether a licence is required. This sort of situation arguably
has more in common with other sorts of licensable activity—the
right to practise certain professions, for example—than
it has in common with the export of tangible goods.
29. We conclude that existing
controls on exports of military goods from the United Kingdom
are not obviously an appropriate template for all of the areas
of activity that the Government intends to control through secondary
legislation under the Export Control Act. We recommend that the
Government should take care to recognise the essential differences
between physical exports on the one hand and, on the other, electronic
transfers, which are not physical, and brokering activities, which
are not exports. Different sorts of activity may require different
sorts of control.
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