5 Trade in products used for capital punishment,
torture etc.
| (a)
(24579)
5773/03
COM(03) 770
|
Draft Council Regulation concerning trade in certain equipment and products which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
|
| (b)
(26097)
—
—
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Amended draft Council Regulation concerning trade in certain equipment and products which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
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| Legal base | Article 133 EC; QMV
|
| Department | Trade and Industry
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| Basis of consideration | EM of 2 November 2004
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| Previous Committee Report | (a) HC 63-xxvii (2002-03), para 2 (25 June 2003), HC 63-xxxv (2002-03), para 5 (29 October 2003) and HC 63-xxxviii (2002-03), para 4 (19 November 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | (Both) Not cleared; further information requested
|
Background
5.1 In December 2003, the Commission put forward a proposal (document
(a)), which would:
- ban all trade in equipment which has no, or virtually no,
practical use other than for capital punishment, or torture and
other cruel, inhuman or degrading treatment: this ban would also
extend to brokering or facilitating such trade; and
- allow competent Member State authorities to control
the trade in certain listed equipment and products, which could
readily be used for capital punishment or other cruel etc. uses,
but which also have legitimate uses.
5.2 In his Explanatory Memorandum of 11 June 2003,
the Parliamentary Under-Secretary of State at the Department of
Trade and Industry (Mr Nigel Griffiths) told us that the UK currently
bans, through its export licensing system, certain torture equipment,
and requires a licence for the export of various other items which
could be used for torture. He added that the proposal would enable
additional items to be banned or controlled with minimal changes
to UK legislation, and in the process would make these criteria
legally, rather than politically, binding. The UK therefore supported
the broad thrust of the proposal, subject to certain reservations.
5.3 One of these related to the fact that human rights
and export licensing decisions are not currently within Community
competence, and the proposal suggested that an application for
a licence to export equipment with a potential use in torture
could be objected to by another Member State or the Commission.
Moreover, if this happened twice, the power to take that decision
would ultimately pass to the Commission. The Government, therefore,
wanted to examine carefully the proposal that the Commission should
be involved in the decision-making process. In view of this, we
said in our Report of 25 June 2003 that, although the purpose
of this proposal was clearly laudable, we would at that stage
simply draw the proposal to the attention of the House, pending
further information on this point.
5.4 When the Minister wrote to us about this on 16
October 2003, he appeared to address instead the question of the
Treaty base chosen by the Commission for the proposal. We therefore
asked him, in our Report of 29 October 2003, to indicate whether
or not his original concern over competence still existed. His
letter of 13 November 2003 confirmed that, whilst the UK accepts
that the Community has competence to regulate which goods are
subject to control, it should be for national licensing authorities
to take decisions on individual applications on a case by case
basis, and that the aspect of the proposal which would confer
such an ability on the Commission was unacceptable. He added
that the Government would seek to amend this point, and that officials
were working with other Member States to draw up alternative proposals.
In view of this, we said in our Report of 19 November 2003 that
we would be interested to know whether it proved possible to devise
an arrangement which would avoid day-to-day decisions of this
kind being taken by the Commission, and that, in the meantime,
we thought it right to continue to hold the document under scrutiny,
given the competence issues involved.
The current document
5.5 We have now received from the Minister an Explanatory
Memorandum of 2 November 2004, enclosing —
somewhat belatedly —
an unofficial text circulated by the Commission in the summer,
together with a brief Regulatory Impact Assessment. The text
is intended to replace the original proposal, and, according to
the Minister, it would (in addition to making minor changes to
the list of equipment and products affected, clarifying a number
of definitions, and specifying a common authorisation form):
- explicitly prohibit the export
of equipment which could be used for capital punishment, but which
could have other legitimate uses, to law enforcement authorities
in countries which have not abolished the death penalty;
- establish a procedure under which the lists of
equipment and products affected can be reviewed and amended; and
- bring the provision of services into line with
Article 133 of the Treaty by confirming that the proposal does
not apply to their supply if it involves the cross-border movement
of natural persons.
However, perhaps the most significant change is to
provide that decision-making
should now be purely at the discretion of Member States, thereby
removing the provision in the previous proposal whereby the Commission
had the power to make the final decision in certain circumstances.
The Government's view
5.6 In his Explanatory Memorandum, the Minister says
that the UK continues to support the broad thrust of the proposal,
and that its effect on the UK is likely to be minimal, provided
its scope is limited to goods banned or controlled under current
national law (though he also observes that the proposal contains
legally binding criteria for considering licensing applications,
whereas the UK currently uses the non-mandatory Consolidated EU
and National Arms Export Licensing Criteria). He adds that the
Government will be seeking to ensure that the proposal is framed
in a way which enables its main objectives to be met, given that
the proposed ban on equipment which could only be used for torture
or capital punishment may be difficult to implement in practice,[9]
and that some legitimate goods[10]
may be caught unintentionally. He also notes that the amended
proposal would impose an import ban on certain equipment, and
says that consideration should be given to whether this is necessary,
given "the low prospect" that such equipment would be
used by law enforcement authorities within the Community.
Conclusion
5.7 Although it has taken the Minister some time
to let us have a sight of this text, we are nevertheless grateful
for this update, and we have noted the changes made to the Commission's
original proposal. On the face of it, these appear to be helpful,
but we would still welcome clarification on two points. First,
we infer from the Minister's comments that the UK's previous concerns
about Community interference in individual licensing decisions
have now been met, but we would be glad if he could explicitly
confirm that this is so. Secondly, given the possibility that
the proposal might in some cases have unintended effects, we would
be grateful if the Minister could keep us informed of the ways
in which those problems are addressed during the negotiations
on the latest document. In the meantime, we will continue to
hold both these documents under scrutiny.
9 For example, oversized handcuffs would be of concern
if used as leg irons, but not as handcuffs. Back
10
Such as paper guillotines and automatic drug injection systems
used on the battlefield by the military. Back
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