Access to information
10. As in previous inquiries, we have asked the Government
to supply us in confidence with information on individual licence
applications. The information that we have asked for and received
on individual licence applications is relatively perfunctory:
a brief description of the nature of the goods, an indication
of volume and value, and the identity of the end-user. We should
stress, as our predecessor Committee also made clear, that we
have not seen the detailed assessments available to Ministers
on which they base decisions to permit or deny an export licence
in cases presenting real difficulty—for example, of the
integrity of a purported end-user, or the risk of diversion of
goods for internal repression.[7]
We have, however, asked for and received explanations, mostly
in confidence, of the Government's rationale in allowing or refusing
licences where the factual information supplied to us seemed to
warrant further clarification.
11. In this inquiry we expanded the scope of our
requests, seeking information on a larger number of licence applications
than in previous years. We did not intend that this should impose
a significantly greater burden on Government. The majority of
our requests were for factual information about licence applications,
which we expected that Government would be able to retrieve relatively
simply from its computer systems, particularly as much of it was
information which the Government would need to be able to retrieve
in the course of its routine licensing work.
12. Somewhat to our surprise, the Government has
found it both difficult and time-consuming to respond to our requests.
We learnt in oral evidence from the Foreign Secretary that the
Government had spent "900 person hours" in answering
our questions and that the ability of the Government "to
deal with export licences was having to be put on hold".[8]
In this context, we note the comment from one of our witnesses
that:
the alternative to putting licensing on hold
is to employ another competent individual … if the same importance
were attached to export scrutiny as there is to export promotion,
physical capacity would not be an issue.[9]
13. Tim Dowse, the Head of the Non-Proliferation
Department in the Foreign and Commonwealth Office, gave us a more
nuanced explanation of the Government's predicament:
the data is available but it is not available
readily in the format that the Committee was requesting. It required
us to interrogate a number of databases and in some respects go
to individual case files to look at why decisions were taken.
This is the problem that we had. It was not a matter simply of
pressing a button and drawing the information electronically.[10]
14. If there were not a relatively straightforward
way of retrieving the data that we were requesting, this would
have worrying implications for the efficiency of the Government's
information systems and the licensing process as a whole. If the
problem from the Government's point of view was the format in
which we were requesting the data rather than the data itself,
we are somewhat disappointed that the Government did not simply
ask to supply the data in a less burdensome format.
15. We appreciate the Foreign Secretary's offer to
talk to us "on an informal basis to ensure we arrive at a
balance".[11]
We are hopeful that this balance can be found before we come to
consider the next Annual Report on Strategic Export Controls.
We recommend that the Government should suggest how it might
provide information to us on licence applications in ways that
would reduce the administrative burden of doing so.
16. The Code of Practice on Access to Government
Information is the reference point for Government decisions on
whether to publish information.[12]
During our last inquiry, the Government declined to provide us
with information that we had requested in confidence on
the grounds that to do so would be contrary to the Code of Practice.[13]
We noted in our Report that we failed "to see the relevance
of the Code of Practice to the provision of information in
confidence to select committees" of the House of Commons.[14]
In its reply to our Report, the Government continued to call in
aid the terms of the Code of Practice to defend several decisions
not to provide information to us in confidence.[15]
The Chairman wrote on our behalf to the Secretary of State in
November 2002, asking for "an assurance that the Code of
Practice on Access to Government Information will not be treated
as relevant to the provision of information in confidence to select
committees".[16]
17. The issue is important because we are only able
to carry out our retrospective scrutiny of export licensing policy
because we have access to sensitive Government information, which
under the terms of the Code of Practice we would not be allowed
to see. Our concern is that if the Government considers that the
Code of Practice applies to information provided in confidence
to select committees, committees' access to sensitive information
may be curtailed. This would impact severely on the ability of
committees to scrutinise Government effectively. We do not expect
the Government to grant us unlimited access to sensitive information,
but it is self-evident that certain sensitive information will
be supplied to select committees in confidence which would rightly
not be supplied if it were to be published.
18. In a belated response to our letter, the Foreign
Secretary continues to insist that the Code of Practice is applicable
to our requests for confidential information. He does, however,
acknowledge that "select committees will receive, on a confidential
basis, information that under the Code would not be disclosed
to the public".[17]
This is welcome. We cannot accept, however, the decision to continue
to explain refusals to supply information in confidence merely
by reference to the Code of Practice. The circumstances under
which the Government would refuse to supply information to us
are not the same as those under which they would refuse to supply
information to the public. The justification of any such refusal
cannot therefore rely on the terms of the Code, since the harms
identified by the Code are ones which would arise from public
disclosure of the information. We welcome the Government's
acknowledgment that it is appropriate to supply information in
confidence to select committees which would not be disclosed to
the public. We would expect the Government to refuse to supply
information to us only where there are very strong reasons for
doing so. We recommend that where the Government refuses to make
information available to us in confidence, it should provide a
clear explanation of the reasons for that decision rather than
rely on effectively meaningless references to the Code of Practice
on Access to Government Information. We recommend that the Liaison
Committee should take this matter further.
Benefits of scrutiny
19. We do not have the information or resources to
assess licence applications to the same degree as the Government.
But parliamentary scrutiny of licence applications nonetheless
brings a number of important benefits, to the Government, to the
public, and indeed to us:
— We bring a degree of transparency to
the licensing process—without jeopardising the confidentiality
of commercially and politically sensitive information.
— We act as a cross-party political sounding
board for the decisions the Government has made, and how it has
made them.
— We can confirm, where the information
provided in the Annual Report may give rise to concern among the
public and non-governmental organisations, whether, on the basis
of what we know, the Government has acted properly in granting
a licence.
— We are able to test whether the Government's
consideration of particular licence applications has been sufficiently
thorough, and sufficiently expeditious, and whether decisions
have been consistent with the Government's own policy criteria.
— We gain a fuller understanding of the
variety and complexity of the goods subject to licensing requirements,
and of the often conflicting considerations that the Government
has to balance in deciding whether to allow a licence application.
20. The Government benefits from our scrutiny: on
the one hand, the knowledge that decisions may have to be justified
to us increases the likelihood that they will be properly taken;
on the other hand, we can also help to provide impartial confirmation
where licence applications do seem to have been properly granted
or refused—sometimes despite appearances. The public benefits
from our scrutiny: it knows that an independent group of parliamentarians
is able to hold the Government to account for its decisions in
a policy area in which comparatively little information is in
the public domain.
21. Retrospective scrutiny of Government decisions
has its limitations. Our predecessors in the last Parliament supported
a system of prior scrutiny of the most sensitive export licence
applications, precisely because it would allow us to feed into
the licensing process at a point which would be most effective.
The advice that we are currently able to give, on exports that
have already taken place, can only confirm where mistakes have
been made, not prevent mistakes from being made. We conclude
that although retrospective scrutiny occurs too late to prevent
a particular export from taking place, it can and should inform
future decisions by the Government.
22. In the next section of our Report, we comment
on the individual licence applications that we considered in the
course of our inquiry.
7 HC (1999-2000) 225, para 7 Back
8
Ev 1, Q 1 Back
9
Ev 45 (Sybille Bauer) Back
10
Ev 1, Q 2 Back
11
Ev 2, Q 5 Back
12
Cm 5629, p 9 Back
13
HC (2001-02) 718, Ev 44 Back
14
Ibid, p 47 Back
15
Cm 5629, pp 1, 5-6 and 9 Back
16
Ev 20 Back
17
Ev 51 Back
