House of Commons - International Development

Select Committee on International Development Fifth Report

1 INTRODUCTION

1. Since April 1999, the Defence, Foreign Affairs, International Development and Trade and Industry Committees have regularly met together to consider the Government's strategic export control system—an arrangement which has become known as the "Quadripartite Committee". These inquiries have now been ongoing for five years. While we have tried to make this Report self-standing, a better sense of its full context will be gained by reading our previous Reports and the Government's replies to them. A list of all our Reports so far this Parliament is published at the back of this volume. A fuller description of the British export control system and of our joint work can be found in our first Report of this Parliament.[1]

2. Strategic exports controlled by the Government include not only the more obvious military equipment, such as guns, tanks and missiles, but also non-lethal military and police equipment, such as anti-riot shields, de-mining devices, and chemical weapon detection systems. The Government also controls a wide range of goods and technology with a proper civilian application, as well as a potential military one (dual-use): such as toxic chemicals used in the manufacture of toothpaste, cryptographic software and space satellites. Even if British defence exports were to cease overnight, export and trade controls would need to remain in place.

3. Since 1 May 2004, these controls have been extended to the intangible (electronic) transfer of military technology and to trade in controlled goods conducted from the United Kingdom (and in certain circumstances by British citizens operating abroad), where these goods are to be exported from a second country to a third country. This raises a wide range of new issues, many of which we have discussed in previous Reports,[2] but on which we have further comment to make below.[3]

4. Our most recent publications were two Reports in May 2003, one on the existing export control system, the other on the Government's proposals for change.[4] In November 2003, a debate was held, based on these Reports.[5] This Report examines developments since May 2003, including the publication in July 2003 of the Government's Annual Report on Strategic Export Controls for 2002.[6]

5. Since 2000, we have taken evidence annually from the Secretary of State for Foreign and Commonwealth Affairs. We did so again in February 2004.[7] In April 2004, we heard from non-governmental organisations (NGOs) and representatives of the defence industries.[8] Later in the same month we paid a brief visit to Brussels and Paris—the former because of the important role of the EU in co-ordinating member states' export policies and practices; the latter to compare the British approach to export controls with that of a fellow member state with an important defence industrial base. In March 2004 we also hosted a meeting at Westminster with the Swedish export licensing authority and their special parliamentary advisory body, the Export Control Council.

6. This is the first year in which we have looked for specialist advice during our inquiry. We are extremely grateful to Dr Sibylle Bauer, Dr Wyn Bowen and Dr Paul Cornish for their assistance and expertise.

Co-operation with Government

7. We are unusual as a Committee because we scrutinise specific licensing decisions taken by the Government. To do this, we need information on these decisions which goes beyond that published in the Government's Annual Reports. The Government has generally sought to be helpful to us in meeting our requests for information. We greatly appreciate the work—according to the Foreign Secretary, "a phenomenal amount"[9]—done by officials in various Government Departments to enable us to carry out effective parliamentary scrutiny.

8. The Government found it difficult to supply us last year with all the information we requested.[10] This year, a solution seems to have been reached with benefits both to the Government and to us: to the Government, because the information is less sifted and therefore less difficult to provide; to us, because we get more information in electronic form, which makes it easier for us to locate and compare decisions of interest.

INFORMATION NOT SUPPLIED

9. There has been some inconsistency in how the Government has provided us with information on its licensing decisions. Some of the information we asked for this year was not supplied to us, despite the fact that we have received the same type of information in previous years:

We were not provided with information setting out the rationale behind the refusal of specific licence applications, despite having received this information in previous years.

We were not provided with adequate information on appeals against licensing decisions, despite having received much fuller information in previous years.

10. The Government assesses licence applications against consolidated EU and national criteria.[11] Since the publication of the Government's first Annual Report on Strategic Export Controls, the Committee has asked for and received in confidence information matching specific licence refusals to the criteria under which they were refused. This year, however, we were not provided with this information, despite having asked for it in the usual way. When we queried this, we were told that "the information the Committees have requested on the reasons for the refusals decisions taken in 2002 … is not easily available".[12] We were also asked to identify specific refusals for which we wished to see the rationale, to enable the Government "to more easily identify whether there are any particular confidentiality issues under the Code of Practice on Access to Government Information in providing the information in any individual case".[13]

11. We have always been provided with this information in the past and it has never before been suggested that this was either difficult or too sensitive to provide to us in confidence. It is odd that this information is not easily available as much of it is routinely supplied to other EU governments in the framework of the EU Code of Conduct. Information on refusals is, as we have previously stated, a "a vital benchmark", because "a knowledge of where and why the Government has refused to issue licences helps us to judge whether its policy in issuing licences is sensible or consistent".[14] It is information we require if we are to evaluate properly national implementation of the EU Code of Conduct.

12. We are also disappointed that we were not supplied with fuller information on appeals. Appeals are an indication of industry's attitude towards the Government's decisions, as well as of the consistency and reliability of those decisions. We have received much more extensive information on appeals in previous years. We conclude that it is regrettable that we were not provided this year with information matching all refusals of licence applications to the reasons for their refusal and with the level of detail on appeals that we have been used to receiving. We trust that this information will be provided where we request it in the future, in accordance with past practice.

INFORMATION DENIED

13. The Government has continued to refuse to allow us to see certain information, internal Government documents in particular, and it has continued to rely on the terms of the Code of Practice on Access to Government Information to justify this.[15] The Liaison Committee is taking up this issue on our behalf as part of its review of access to information and persons, as it is relevant to select committees more widely.

14. We concluded last year that "it [was] unacceptable that it [had] taken the Government well over a year to decide whether to provide us with analytical information about the application to export an air traffic control system to Tanzania"[16]—information we had asked to see in confidence in March 2002. We also subsequently asked, in November 2002, to see the guidance given to officials on the interpretation of the sustainable development criterion—also in confidence. Eventually, in August 2003, the Government provided us with a negative response to both these requests, the first on the basis that "it would not be possible to provide the Committee with a meaningful and balanced summary of the analysis that protected the commercial confidence of other parties, and which did not at the same time risk harming the frankness and candour of internal discussion",[17] the second on the basis that "to release this paper would risk harming the frankness and candour of internal discussion".[18] Despite further representations from us, the Foreign Secretary has stuck by these refusals.[19]

15. While these are indeed internal Government documents, we do not believe that our ability to scrutinise them behind closed doors would in any way harm the frankness and candour of internal discussions within Government. These are not documents expressing points of view. One contains factual analysis; the other is agreed guidance on the implementation of policy.

16. To confuse matters still further, the Government has provided us in confidence with the internal guidance issued to officials on considering licence applications for spare parts.[20] We very much welcome this proactive move to keep us informed, but we do not understand why it was appropriate to allow us to see this document, but not other similar guidance that we have specifically asked to see.

17. Our impression remains that the Government is denying us access to certain documents unreasonably. We recommend that the Government should explain in its response to this Report why it considers that access to the documents requested by the Committee would harm the frankness and candour of internal discussions within Government, given that the documents we have asked to see are not internal discussion documents and do not express the points of view of officials, but rather are simply factual analysis and agreed guidance.

1 Defence, Foreign Affairs, International Development and Trade and Industry Committees, First Joint Report of Session 2001-02, Strategic Export Controls: Annual Report for 2000, Licensing Policy and Prior Parliamentary Scrutiny, HC 718, paras 5-31 Back

2 Seventh Report from the Defence Committee, Seventh Report from the Foreign Affairs Committee, Sixth Report from the International Development Committee and Eleventh Report from the Trade and Industry Committee, Session 2000-01, Draft Export Control and Non-Proliferation Bill,,HC 445; First Joint Report from the Defence, Foreign Affairs, International Development and Trade and Industry Committees, Session 2002-03, The Government's proposals for Secondary Legislation under the Export Control Act, HC 620 Back

3 See paras 210-238. Back

4 Second Joint Report from the Defence, Foreign Affairs, International Development and Trade and Industry Committees, Session 2002-03, Strategic Export Controls: Annual Report for 2001, Licensing Policy and Parliamentary Scrutiny, HC 474; HC (2002-03) 620 Back

5 HC Deb 6 November 2003, cc 337-380WH Back

6 Ministry of Defence, Foreign and Commonwealth Office, Department for International Development, Department of Trade and Industry, United Kingdom Strategic Export Controls: Annual Report 2002, Cm 5819, July 2003 (henceforth "2002 Annual Report") Back

7 Ev 1-17 Back

8 Ev 18-33 Back

9 Q 2 Back

10 HC (2002-03) 474, paras 10-15 Back

11 For a fuller exposition of these criteria, see HC (2001-02) 718, paras 5-10. The criteria are published in full in the Government's Annual Reports on Strategic Export Controls. Back

12 Letter of 15 December 2003 (not printed) Back