Examination of Witnesses (Questions 107-119)
THURSDAY 3 APRIL 2003
RT HON
PATRICIA HEWITT
AND MR
GLYN WILLIAMS
Chairman
107. Secretary of State, welcome. Mr Williams,
welcome to you as well. Could we start with one of the policy
issues that has caused some debate following the publication of
the consultation document, namely trafficking and brokering. Could
I start by asking the following: there are other countries that
have legislation that have extraterritorial controls on all trafficking
and brokering of all military equipment. If this is sensible and
desirable in other countries, why not in the UK?
(Ms Hewitt) We have had a look at that,
Chairman, and in particular I think it is right to say that in
America, where they do have a somewhat different approach to extraterritoriality
from ourselves, they do have extraterritorial controls on trafficking
and brokering in everything, in all military equipment. We have
had a look at it and our judgment is that it simply does not work.
As far as I know there has not been a single successful prosecution
under the American brokering law either for brokering offences
carried out within the United States or for offences carried out
overseas. There was a very interesting report last year from the
Fund for Peace, which is a very well respected American NGO, it
actively campaigns for tougher controls on the arms trade, and
in that report they said that they were very concerned about the
general ability of the American authorities to operate and enforce
this extraordinarily wide system of controls. Indeed, the report
went on to say that while the American law on paper is as comprehensive
and as far reaching as it possibly could be, it will only ever
be as good as its enforcement, and the report says the enforcement
is nil. I have to say I am not interested in writing a law that
looks wonderful on a piece of paper or in a headline, I am interested
in a law that will actually have some practical effects.
108. Do you believe the American administration
thinks that their law is of no value?
(Ms Hewitt) As I say, the American administration
has a different attitude towards extraterritoriality. It is a
matter that we are discussing with them at the moment on the Sarbanes-Oxley
Act. The Home Office has set out very clearly guidance on when
extraterritoriality should apply. We have drafted our proposals
to be fully consistent with those guidelines. The idea that one
would have extraterritorial controls that would require, for instance,
a British citizen who has been resident in Australia for 15 years,
also working for a completely legitimate company that is working
in full accordance with Australian law, also to be licensed under
UK law, I just do not think makes sense and I do not wish to put
the overstretched resources of my department into trying to enforce
something that will not make a jot of difference to the evil that
we are trying to control here.
Sir John Stanley
109. Secretary of State, I find that answer
difficult to reconcile with your proposals because you have accepted
extraterritoriality in respect of not only embargoed items, and
one can understand the point about that, but you have accepted
extraterritoriality in respect of two classes of exports. One
class of exports is what comes under the framework of the schedule
to your draft, Annex G, under the heading "Certain Security
and Para-Military Police Equipment" and that is broadly described
as torture equipment in the submissions we have received and the
definitions of the items of "torture equipment" are
contained at Annex F, page 32. If I can just give a simple illustration
of the definitional problems. One of the methods of torture which
we in the UK are, sadly, all too familiar with is the practice
of shooting out people's kneecaps practised by paramilitaries
on both sides—and I stress both sides—of the community
in Northern Ireland. That is carried out by the use of handguns
placed at the back of people's knees to shoot out their kneecaps.
That is torture by any definition. You are including leg-irons,
gangchains, electric shock belts, etc., etc., but if the policy
objective is to extend extraterritoriality to instruments of torture
then on that basis you should certainly be including handguns
and should possibly extend it to firearms. If I can take also
the second item which you have included, you have included missiles
with a range of 300 kilometres or more. Well, Secretary of State,
as you know and, indeed, as we have been seeing on our televisions
over the last few days the surface-to-surface missiles which have
been used in Iraq and fired against our own forces and into Kuwait
have in most cases been missiles of a shorter range. Again, I
simply do not understand the policy logic of extending extraterritoriality
to missiles of 300 kilometres and not shorter.
(Ms Hewitt) What we are trying to do here is to extend
extraterritorial controls to three categories of activity that
we just want to stop completely. One is the export and use of
torture equipment, and I will come back to that one in a moment.
The second one is the export of military goods to embargoed destinations.
The third one is the trafficking in long-range missiles. On those
three categories, which may have some boundary problems, and you
raised one in relation to long-range missiles, they nonetheless
are fairly clear.
110. And torture I suggest.
(Ms Hewitt) I will come back to that one. We think
everybody all around the world can understand very clearly that
these are serious offences, that they are internationally condemned
and abhorrent and, therefore, to traffic or broker in them would
be something that is likely to be subject to control. Once you
go beyond that into the entire category of any military equipment,
including small guns, I think first of all you go way beyond the
guidelines that we have set out on when we think extraterritoriality
is justified, secondly you make the practical implementation of
controls quite impossible, as I was indicating a moment ago. On
the issue of small arms, although quite clearly a handgun can
be used for the most appalling purposes, and we know very well
the effects of kneecapping in Northern Ireland, we would not define
a hand gun per se as torture equipment. As far as the trafficking
in small arms is concerned, I think we have helped to lead the
way to cope with the trafficking of small arms and light weapons.
Just this year, in January we brought together representatives
of governments and NGOs from around the world to work on how we
can get stronger commitments to the UN programme on small arms.
We are not, I am glad to say, a major exporter or manufacturer
of small arms, but I would not see them as being caught within
the ban on torture equipment per se.
111. Would you accept that your list of items
that are within the definition of torture here on page F32 is
very, very far from complete. If the policy objective is to extend
extraterritoriality to instruments of torture it is so incomplete,
if I may say so, it is almost a posturing exercise rather than
an exercise for real.
(Ms Hewitt) Well, I do not actually accept that, Sir
John. We take this enormously seriously. We have put a huge amount
of time and effort into thinking this through. We are out to consultation
at the moment. I think we had an earlier date for this appearance
and I am sorry I was not able to appear but I was very clear that
I wanted to come before the Committee before the consultation
on our draft Orders expired. We are out to consultation on all
of these draft Orders and obviously if people come back and say
"This is an incomplete list and for the following reasons
you should have other things included on it" we will look
at that very seriously indeed.
112. You have not answered my point. How can
you defend missiles above 300 k and not shorter?
(Ms Hewitt) I wonder whether Mr Williams would like
to comment on that because I am not aware of the detailed thinking
on that one. This may be partly a question of practicality. You
laugh, Sir John—
113. I am not laughing. I have to say I am amazed,
Secretary of State, that you can be in front of this Committee
and say you have not addressed the issue of why you are proposing
to extend extraterritoriality to missiles of 300 k and more and
not shorter. I am amazed.
(Ms Hewitt) I think the general reason is that long-range
missiles, in other words missiles defined as more than 300 k,
are much more capable of being used for external aggression which
we are particularly concerned with in the context of regional
conflicts. It has been a central part of the criterion for arms
controls that we introduce and secure agreement in Europe that
the use of arms for external aggression and their use in a situation
that would exacerbate regional conflict is something to which
we pay particular attention. That is the background to that policy.
114. What about shorter range missiles capable
of carrying weapons of mass destruction? Is that not a very, very
major issue for the government?
(Ms Hewitt) Yes, of course it is. Part of the export
control operation that we already have, and which we are strengthening
further with this new Act, is precisely designed to limit and
to prevent the proliferation of weapons of mass destruction of
all kinds.
Chairman: You referred to the fact that the
UK is not a major producer or exporter of small arms but we are
talking about brokering and that is something entirely different.
We are talking about UK citizens and companies brokering deals
that may result in small arms being in the hands of terrorists
or conflict zones and so on. Martin, you wanted to pursue that?
Mr O'Neill
115. To an extent you have begun to cover it.
What about this issue of brokering? Would the registration of
arms dealers in itself not bring them into a loop, subject them
to some form of scrutiny in ways that perhaps they are not exposed
to at present?
(Ms Hewitt) Let me just make it clear that of course
the controls that we are introducing through the Act on trafficking
and brokering include controls on trafficking and brokering in
small arms and any other kind of military equipment where any
part of the transaction, including an e-mail, a fax, a phone call,
any part of it takes place within the United Kingdom. So we are
catching an enormous range here. It is one way in which we are
very significantly strengthening and extending the reach of our
present controls. On the issue of a register of brokers, we have
had a very careful look at this, and I know it is something on
which the Committee has previously commented. We will be holding
information on everyone who applies for a licence, both for exports
and for arms trafficking and brokering activities. We will use
that database for our own licensing and enforcement processes
and we will share it with other international authorities so that
we can get effective international enforcement. Publishing that
as a sort of register of government approved brokers would not
actually help to provide for stricter scrutiny of their activities.
It would certainly add to the bureaucracy of the scheme, which
I am concerned not to do. I just do not think that it would actually
help us in the purpose for which we pass them on.
Mr O'Neill: I am not quite sure that I am really
in order to ask this question but I will nonetheless.
Chairman: If you are not I will try and stop
you, Martin, if I am able to.
Mr O'Neill
116. This is an all-party committee and you
and I are both Labour Party Members who fought an election on
a manifesto which committed the party in government to doing something
about this of a rather more substantial character than you have
been describing today in this particular area of trafficking and
brokering. I just wonder is this one of these areas where faced
with the reality of government the aspirations of the manifesto
seem to crumble away because it is not administratively possible
to achieve the objective that was set out, or are you trying to
do it by some means that as yet we are unable to discern?
(Ms Hewitt) Mr O'Neill, I do not accept that. As you
rightly say, you and I, and several other Members of this Committee,
all fought that election on the basis of a manifesto commitment
that said we would very significantly strengthen our controls
particularly on trafficking and brokering, and that is what we
are doing. The reach of this new Act and these new Orders is absolutely
immense because not only do we have full extraterritorial controls
on trafficking and brokering in relation to embargoed destinations,
long-range missiles and torture equipment, we also have this new
control on trafficking and brokering in any military equipment
whatsoever where any part of the activity takes place within the
United Kingdom. That means, and frankly we have been criticised
by industry for this, a huge extension of the licensing system
and the record-keeping system that goes with it for enforcement
purposes to companies and activities that are completely legitimate
and which I think all of us would accept as legitimate to provide
for the military needs of legitimate governments. I think that
is absolutely the right thing to do but I do not think anybody
should pretend that this is a modest step forward that does not
fulfil our manifesto commitment. It is a very, very big step forward
indeed.
Chairman
117. Can I just pursue that. I accept that it
is a significant step forward but the Government's commitment
was very clear, it was to control the activities of arms brokers
and traffickers wherever they are located. That was the specific
commitment. The interesting thing about the defence industry in
the UK is that on a previous occasion when Brinley Salzmann gave
evidence on behalf of the Defence Manufacturers' Association he
drew our attention to the German experience where, again, German
citizens who broker, if they do it outside of Germany are not
affected. Brinley Salzmann's point was that Germany's controls
on brokering "catch the good guys, the bad guys move to Cyprus",
which is the equivalent of my point about getting on a train to
Lille to do the deal. The fact is, is it not, that a UK citizen
or company could get around those controls by simply popping on
a train to Lille to do the business?
(Ms Hewitt) I do not believe that is the case. I know
that suggestion has been made, I saw it again in the Financial
Times this morning. I simply do not accept that is the case
because if any aspect of trafficking and brokering takes place
in the United Kingdom it will be caught and if the trafficking
and brokering is wholly outside the United Kingdom but is involved
with embargoed destinations, torture equipment or long-range missiles
then it is caught in any case.
118. The three categories are covered and for
some reason, and this is what we are exploring, you decided not
to cover this fourth category. The fact of the matter is the fourth
category is not covered and if I were an arms dealer and I wanted
to broker arms deals in small arms I would simply go to Lille
or Paris or Brussels and do it as long as there was not a cold
fax somewhere in the UK that would get me caught, I would not
be controlled, whereas I admit if I were trying to broker weapons
of torture I would be caught. It seems to me—
(Ms Hewitt) The thinking behind that, Chairman, is
our view of extraterritoriality is absolutely on the lines, and
it is a cross-government view that was set out in the Home Office
memorandum, in the Home Office guidance. If one tries to go completely
extraterritorial on all military equipment then what we end up
having to try and catch, but in reality simply could not, is UK
persons wholly living abroad engaged in entirely legitimate transactions,
not involving long-range missiles, not involving embargoed destinations,
not involving torture equipment, and doing so in countries that
have their own controls on the export of military equipment. I
do not believe that that is justified in principle, it is wholly
inconsistent with the view that we take on extraterritorial legislation,
it would make it impossible for us to criticise governments who
we believe go much too far in their attempt to apply extraterritorial
controls to our citizens and companies. I think wrong in principle
and wholly unenforceable in practice.
Mr Hamilton
119. And yet, Secretary of State, under UK law
bribery is a criminal offence when committed by a British citizen
anywhere in the world but trafficking and brokering of small arms
will not be. Why is the government less committed to criminalising
trafficking and brokering than it is to bribery?
(Ms Hewitt) Because bribery of government officials
is a criminal offence in just about every country in the world.
It is something which is never justified. It is, quite rightly,
subject to international condemnation and, indeed, to stronger
international action whereas selling of small arms, although we
are all rightly concerned about the use of small arms for quite
appalling purposes, is sometimes justified. It is simply not the
case to say that selling or brokering of small arms is always
wrong, always evil and should always be prohibited. If it were
we would have put it on the list of the three things that we are
actually seeking to outlaw completely, but it is not, it falls
within that broader category of military equipment that may be
legitimate or may not be. That is where you need to have a control
system and that is why we have such strong export controls but
you cannot say that you are just going to ban the whole thing.
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