House of Commons - Foreign Affairs

Select Committee on Foreign Affairs First Joint Report

6 OTHER CONCERNS

107. The armed forces frequently export military equipment from the UK, normally for their own use abroad. As an arm of Government, the armed forces do not need to apply for licences for these exports. Nor would the new controls bind the Crown, although there is provision in the Export Control Act for the Government to make orders doing so, in line with its international obligations.[117]

108. Industry has expressed concern that the proposals in the consultation document may, however, prevent them from providing expeditious support to the armed forces when these are based overseas. A very topical example from the Iraq war was given to us by one of our witnesses: "If this consultation document were already in being, we would not be able to take phone calls from Basra, which one of us did this morning, on technology questions and answer with a technical response".[118]

109. Support for the armed forces may not always be direct. Military equipment operated in the service of the armed forces may not always be owned by the Crown, and technology and technical assistance related to this equipment may not be provided direct to the Crown. Furthermore, as it was pointed out to us: "In the context of coalition warfare …, whilst an export may be in support of forces operating in the theatre and indeed in forces directly supporting and working with British forces, it may not actually be for the British forces themselves".[119]

110. Once again, open licensing may well be the answer. We would expect that in support of the British armed forces, open licences would be appropriate even for the most sensitive technology—such as detection of and protection against nuclear, chemical and biological attack. It seems highly unlikely that the Government would knowingly allow a situation to arise in which military operations overseas were compromised by domestic export control legislation. We welcome the Secretary of State's recognition that it is "vital to ensure that the operational efficiency of our Armed Forces is maintained once the Export Control Act is implemented", and her undertaking to work closely with the Ministry of Defence and industry to ensure that this is the case.[120] We recommend that the Government should ensure that the secondary legislation does not in any way impede the expeditious provision of support to the British armed forces, those equipping them and servicing that equipment, and their allies in combat and training operations.

Use of information

111. The Government's proposals include provisions setting out the purposes for which the Government is permitted to disclose information in relation to the controls.[121] These include the provision of information to meet the Government's international reporting requirements, to exchange information with international bodies and other states and within Government, and to compile the Annual Report on Strategic Export Controls. The Government claims that "the aim of the disclosure provisions is to set out in legislation existing practice and to apply that to the extended scope of the Act".[122]

112. Our work has depended on the Government providing us with information on export licences—much if it in confidence, but some of it in public. The Government's provisions on disclosure of information make no mention of either the House of Commons or its Committees as permitted recipients of information on the export and trade in strategic goods and technology. In the view of the Campaign Against Arms Trade, "it is unclear how these Articles would affect" our ability to scrutinise the Government.[123] We recommend that the Government should explain in its response to this Report whether the provisions as currently drafted on the use and disclosure of information would in any way legally inhibit the Government from providing information to Parliament or its Committees, in confidence or in public. If there is any doubt, the relevant provisions should be extended to include Parliament and its Committees.

Penalties

113. The Government's proposals make provision for penalties. Generally these are stiffer than those set out under previous legislation. The Government proposes, for example, to increase the maximum penalty for "deliberately flouting controls on exports, technology transfer, technical assistance and trade" from 7 to 10 years.[124] We conclude that the Government's decision to increase the maximum penalties for the most serious offences under the Export Control Act is welcome. This is fully warranted given the profound impact that the irresponsible proliferation of military equipment has on the lives of countless people.

114. It is unclear to us from the text of the proposals to what extent the Government will be able to hold organisations to account for offences under the secondary legislation. According to the CAAT, "the penalties described for violation of the Orders apply only to individuals". We agree that it is important to send out a strong "message of corporate responsibility for adherence to export control rules".[125] We recommend that the Government should ensure that it will be able to call companies and organisations to account, as well as individuals, where there is corporate responsibility for an offence.

115. Secondary legislation under the Export Control Act must comply with the Human Rights Act. The burden of proof specified for a number of offences appears to be in danger of breaching Article 6 of the European Convention on Human Rights under which "everyone charged with a criminal offence shall be presumed innocent until proved guilty". Under one set of provisions, an offence will have been committed by a person "unless he provides evidence that he did not know and had no reason to suppose that the goods in question were to be supplied or delivered to a person or place in" an embargoed destination.[126] Under another, a person "shall be guilty of an offence" if he fails to provide evidence that goods, software or technology have reached an authorised destination.[127]

116. These appear to be a drafting errors, doubtless with straightforward solutions.[128] We recommend that the Government should ensure that all secondary legislation under the Export Control Act is compliant with the European Convention on Human Rights.

Appeals

117. For the first time, each of the new orders will set out in legislation the administrative appeals procedures already in place. An applicant has 28 days to appeal against a decision not to grant an export licence and may not proceed with the export unless the appeal is successful. The appeal will be heard by senior officials within the appropriate Departments. A refusal to grant an export licence made at ministerial level is subject to review at that level.[129]

118. We welcome the decision to place the appeals procedures on a legislative footing. By doing so, the Government may, however, be widening the scope for a legal challenge of its appeals system. It could be questioned, for example, whether the involvement of ministers in appeals relating to decisions also taken at ministerial level breaches the right of the applicant under the Article 6 of the European Convention on Human Rights to a hearing before "an independent and impartial tribunal". We doubt that the export of military equipment could be considered a right. Nonetheless, we recommend that the Government should describe in its response to this Report the steps that it has taken to limit the vulnerability to judicial challenge of the administrative appeals system against licence application refusals.

Parliamentary debate

119. When the Government comes forward with the secondary legislation in final form, this legislation will be subject to a relatively weak form of parliamentary procedure. There is no requirement for either House of Parliament to vote on the Orders or even to debate them before they become law. Although either House has the power to annul any of the Orders if it votes accordingly within 40 days of the Orders being laid, such a power has only extremely rarely been used.

120. Our predecessors in the last Parliament recommended that "the Government should undertake to use their best endeavours to find time for a debate" on Orders under the Export Control Act, where the Committee thought it appropriate.[130] In its response, the Government refused to give a guarantee that it would find time for a debate, but that it would be "sympathetic … if there were a particularly controversial measure".[131]

121. The Orders likely to emanate from the consultation will in many ways be as far-reaching as the Act itself. Their exact form will presumably depend on the outcome of the consultation process. While we do not anticipate opposition to the thrust of the Government's proposals, a debate on their detail and the practicalities of their implementation would be valuable. A debate in a Standing Committee would enable any Member of the House to take part,[132] on the basis of a motion to take note of the legislation.[133] We recommend that the Government should find time for a debate in a Standing Committee of the House of Commons on secondary legislation stemming from the consultation. We also reserve the right to look at the secondary legislation ourselves.