Examination of Witnesses (Questions 20
- 33)
WEDNESDAY 15 DECEMBER 2004
MR ANDY
MCLEAN,
MR OLIVER
SPRAGUE AND
MR ROBERT
PARKER
Q20 Mr Evans: Are you happy that
the EU Code of Conduct is sufficiently rigorous to ensure that
there is not going to be a problem?
Mr McLean: Not the way in which
it is being currently implemented, no. Obviously UK exports to
China, as well as having to meet the test of the embargo, currently
have to meet the test of the consolidated criteria, and yet there
were something like £76.5 million worth of exports in 2003
and £37.5 million January to June 2004—and that is
including things like components of military helicopters, components
of military aero engines and technology for the production of
combat aircraft. So that is going with the dual safeguard of both
the embargo and the criteria. I think if you have the criteria
alone, unless they are elaborated and more tightly implemented
they would not do the job.
Q21 Mr Bercow: I would like to question
you on the EU Code of Conduct on arms exports, in respect of which
there does seem to be a pretty stark difference between the current
stance and ambition of the Government on the one hand, and the
current stance and ambition of yourselves on the other. Very specifically,
as I understand it, the Government's position is to say, "Well,
we should harmonise EU Member States' reporting methods and we
could very usefully examine the legal status of the code and consider
the rather important issue of whether that code should become
the common position, but ministers reckon that the present information
sharing system is adequate. Your magnum opus on the subject
is really very much more ambitious, as I am sure you will acknowledge.
You want the code to include consideration of corruption in the
arms trade; all exports of relevant equipment; police equipment
and components, to bolster transparency and information exchange;
to widen the impact of the criteria to include legislative and
administrative capacity; to harmonise annual reporting. There
is literally a plethora of subjects: tackling licensed production
overseas; the transit of arms, etcetera, etcetera. There is a
big difference. May I ask you in the light of that, and given
that you are in the world also of real politique which
of those agenda items you regard as the most important. What would
you go to war over?—if I may put it that way.
Mr Parker: The figure that is
quite illustrative of this, extrapolating from the Foreign Secretary's
comments in his last evidence session to you, is that it appears
that around 25% of the consultations result in an undercut at
the moment. That would appear to be quite a high figure for a
system which is based on common interpretation of criteria, so
I think that anything that can help the common interpretation,
harmonise the interpretation of the criteria, is our priority.
We would probably go for changing the wording of the criterion
to start with. As you say, in the real world there has been a
year's review and there have been maybe one or two tinkering changes
to the criteria but that does not seem to be up for grabs at the
moment. So we would put forward the idea that the UK should be
promoting the development of substantive guidelines, along the
lines of those that have been developed from criterion 8, to enable
people to interpret the criteria in a common way. Out of all the
criteria, our priorities would be numbers 2 and 4 and it would
be interesting to have a conversation around criteria 5 as well
and the issue of national security and how states are interpreting
that one.
Q22 Mr Bercow: How have you been
involved in the review? Although it is not for us to advise you—and
you do not need any advice from us on your campaigning techniques—have
you been able concretely to demonstrate that the effect of the
existing code, which you regard as too restrictive and too weak,
has been to allow the continuation of the spread, for example,
of small arms to destructive effect in human terms? In other words,
are you able to demonstrate to ministers that unless they take
a more robust stance of mind, which you favour, there is going
to be greater repression because there already has been—and
you give the examples—and further loss of life, because
there already has been—and you can give the examples.
Mr Parker: I think I would point
to the fairly recent Amnesty report: Undermining Global Security:
the European Union Arms Exports, which does just that and
goes through picking examples where we feel states have either
deliberately or unintentionally let things slip through, resulting
in human rights violations.
Mr Bercow: I very much appreciate that.
May I say, Chairman, Mr Parker has just added to my extensive
Christmas reading list.
Q23 Chairman: I have just asked the
clerk to request copies for the Committee.
Mr Parker: Of course.
Mr McLean: That is a very good
question and obviously the ultimate litmus test of the effectiveness
or otherwise of the criteria is being able to demonstrate that
impact on the ground. But I do not think that is the only test
we should be looking for. I think it would be a mistake if all
the debate on export licensing focused on specific instances where
NGOs could demonstrate that exported equipment had had an abusive
effect on the ground because obviously the great stride with the
EU Code of Conduct is that it is a risk-based system of assessment.
I think it is important that officials are looking at and we are
scrutinising whether the Government is taking an effectively cautious
enough approach in its licensing: Is it fully assessing the future
risk that this export could be used for internal repression or
regional stability? That requires a much more far-sighted assessment
rather that just whether there is evidence of that particular
piece of equipment having been used in a specific instance in
the past.
Q24 Mr Bercow: You touched on criterion
8 amongst the different criterion you have mentioned. Are you
aware that the Government is participating in a group to produce
a users' guide, so that people can make better use of that criteria
which is often seen to be a weak link. Do you think the Government
is taking into consideration your concerns when developing this
users' guide?
Mr Sprague: We produced this report
in May last year which is looking at precisely this issue. The
UK has been particularly active in working in this working group
on criterion 8. Although it has not been agreed formally, we hope
agreement is going to be reached on 2 December with the EU COARM
meeting—but it looks like it might slip until early January.
We do believe that the guidelines they have produced broadly reflect
some of the recommendations we make in here, so we do think it
will help. It is a horrible pun, but it is the weak person's criterion.
I think even from the last report there has still only been one
UK refusal on the grounds of sustainable development. I think
the wording on the criterion itself is slightly problematical
because I think it sets the threshold very high because it talks
about a "serious risk of undermining sustainable development"
which I think it is actually difficult to work out, whether something
is a serious risk or not. I think if we just look at a UK example
from the annual report, in the last quarter there is a very large
increase of equipment to Nigeria. The last quarter figure is significantly
larger than any of the previous reporting periods, if you look
at 2002-03 or the first quarter of 2004, and this includes equipment
such as artillery systems and four-wheel drive vehicles. It is
entirely possible that this equipment is for use for peacekeeping
but without a further elaboration in the actual reporting it is
very difficult for us to tell that, so it would raise serious
concerns here about the sustainable development impact of those
transfers.
Q25 John Barrett: You mentioned there
has only been one refusal in 2003. I wonder if you or your colleagues
have any comments on the fact that there has only been one refusal
in the space of five years.
Mr McLean: I think it is surprising.
When you look at the high value of UK exports, then I think you
would expect more than one licence to have been refused. We would
certainly hope that with these new extrapolated guidelines the
number of licence refusals would increase, not just in the UK
but across the EU, because it is much clearer to officials how
actually this criterion should be implemented. But I think the
point the Committee has made in the past, about the need and importance
of assessing the cumulative impact of licensing decisions on sustainable
development and not just the impact of one specific licence, was
very important. I think that is now the position of the Government
in the EU but it is important to ensure that that actually happens
in practice.
Q26 Sir John Stanley: In this all-party
Committee we nonetheless decided in our report on the Government's
secondary control legislation under the Export Control Act, House
of Commons paper 620, to quote a very important sentence from
the Labour Party's general election manifesto in 2001: "We
will legislate to modernise the regulation on arms exports with
a licensing system to control the activities of arms brokers and
traffickers wherever they are located." In our report we
drew attention to the fact that the Government, by applying these
secondary controls solely to missiles with a range in excess of
300 kilometres and to certain types of torture equipment, was
only touching an absolutely fractional amount of the trafficking
and brokering trade. I would judge, myself, less than 1%—given
that long-range missiles are outside trafficking and brokering,
and are entirely done government to government, and, as far as
the torture equipment is concerned, it is said it should be included
but as we all sadly know there are any number of instruments of
torture that you can construct if you get denied access to certain
types of handcuffs. In our report, we made the recommendation
in paragraph 50: ". . . that the Government should seek to
extend extra-territorial control of all the trafficking and brokering
which, if conducted in the UK, would not be granted a licence."[2]
That was a unanimous conclusion of these four Committees. The
question I would like to ask all three of your organisations—and
do respond verbally now but I am also going to encourage you to
search your filing cabinets and all the research facilities that
you have—is: Do you have actual evidence that you can provide
to the Quadripartite Committee of UK individuals or UK companies
overseas actually engaging in trafficking and brokering of a huge
cache of weapons that so far are outside the secondary control
legislation? As we all know, the overwhelming volume of weapons
that are trafficked and brokered are small arms, automatic weapons,
rocket propelled grenades, explosives and so on. It would be interesting
if we could have factual evidence, particularly before we see
the Secretary of State in January, as to the evidence you have
as to trafficking and brokering by UK individuals and companies
overseas brokering weapons to destinations that would not be granted
a licence if carried out in the UK.
Mr Parker: I guess we should start
by saying that of course these people would not have needed to
go overseas until May 2004, because their activities were not
controlled in this country when they were in-country either, so
in theory that kind of paints the picture of how hard it is to
track these people down if they only would have had to go overseas
since May. If I may, there is a case closer to home which could
be seen potentially as a test case for the Export Control Act
involving a UK broker reportedly brokering equipment to Sudan.
Recent press reports and an Amnesty Sudan report have named the
company. The supporting documents seem credible and I believe
that the company is now under investigation, so I will not go
into detail here, but it would seem to us that one of the stated
purposes of the Export Control Act was to stop the UK being used
as a base to supply weapons into conflict zones and this would
appear to be a good test case. Whether that individual would then
go off-shore because they found the legal teeth of the Export
Control Act were starting to tighten, is another point, but I
am sure we can look for instances where we do have on record UK
citizens trying to engage in this kind of activity.
Mr Sprague: Of course we fully
support—and it is our view as well—the decision that
we should have full extra-territorial controls on arms brokers
and traffickers. The UK position is possibly now out of step with,
for example, the EU common position on arms brokering and a more
recent OSCE document on arms brokering which actually talks about
the desirability to extend extra-territorial controls. I notice
that a recent US congress report has again pointed at the fact
that the UK only have partial extra-territoriality and they are
looking to that as a weakness. I can think of one specific example
that I know of involving a UK broker. This was done through a
press investigation but I have seen some of the documents, and
this was basically a UK broker who was operating and regularly
does operate out of Bulgaria. He even had his own mobile phone.
Although he did not end up supplying, because the operation was
a sort of sting operation with a journalist who was doing it,
he was openly prepared from Bulgaria to negotiate the supply of
small arms to Syria at a very, very interesting time vis-a"-vis
the conflict in Iraq and some of the conversations that the journalist
had with this individual make it clear that the possibility of
diversion to other destinations from Syria, including Iraq, might
be possible. Now this is clearly somebody negotiating a deal from
outside of the UK, from Bulgaria. I know that the same individual
has operating bases in Kenya, for example, as well as Bulgaria.
That is just one example. It did not, thank God, result in an
actual transfer but clearly the intent was there.
Q27 Chairman: I am conscious that
we are in a public session and it might be information that it
is appropriate you could pass on to us privately. If investigations
are taking place, we do not want to jeopardise them. I am as anxious
as Sir John, we all are, to have information of that kind; I am
just careful about not going too far into detailed discussion
of individual cases.
Mr McLean: One other brief point
on arms brokering. If you look at the range of countries in the
recent report from which weapons are being sourced, it does not
of course give you the destinations but it is a very, very wide
range of countries from which weapons are being brokered. Of course
it does not tell you the location of the broker but it does give
you a very good indication of the internationalisation of this
trend. If arms brokers are sourcing weapons from places, even
including Sri Lanka, then surely it is not beyond their wit to
move out of UK soil to actually organise the deal. Another point
around your question as to what percentage of the trade will actually
be covered by the existing controls, is that, again, that is going
to be quite difficult to get at because of the lack of transparency
in the report, because under the brokering licences it does not
list in the reports the type of equipment they cover. I think
if that type of equipment was listed, then it would actually enable
us to see what proportion is of the type of weapons that we are
talking about.
Sir John Stanley: I fully agree with
what the Chairman has said, if there are any issues of breaching
sub judice, but, as far as the Committee is concerned,
in so far as you are able to be specific, possibly even referring
to press reports and so on, it would be very helpful for the Committee
to be able to be as specific when the Foreign Secretary comes
in front of us.
Q28 Chairman: As Sir John has said,
we would be very interested to have any information on this at
all.
Mr Sprague: The case that I referred
to was actually submitted as part of the evidence to the secondary
legislation and consultation process so it should actually appear
somewhere in a public document.
Chairman: We will ask the clerk to make
sure we have it.
Q29 Mr Hamilton: May I return to
the issue we touched on at the beginning of the session and that
is licensed production overseas to countries that are purchasing
a product from the UK. Many of those countries demand that a certain
proportion of what they buy is manufactured in their own country.
During the past year the Government has announced the sale of
Hawk jets to India. I understand that 42 of the 66 jets ordered
are to be produced under licence in India. You have all commented
on licensed production in the past. Do you have any specific concerns
about this Hawk jet deal?
Mr McLean: Yes, we have, and significant
concerns—partly because of the essential risk that the transfer
could result in an increase in regional instability and a breach
of criterion 4. It has been well documented that, although Hawks
are training jets, they do have a ground attack function that
could be very useful in the mountainous terrain of Kashmir. Also,
one of the reasons the Indian air force is keen to acquire trainer
jets is to train their pilots to fly faster fighter jets that
are capable of carrying a nuclear payload, so I think there is
a serious concern about abetting future proliferation as well.
As you say, the fact that some of these planes will be manufactured
in India then of course loosens the degree of control we have
over the deal and the potential re-export, for example. So I think
it is a good example of how there is this growing trend towards
licensed production and it does inevitably mean that the UK Government
then has less control over the use to which these weapons will
be put. A linked point to draw the Committee's attention to is
the role which the UK now plays in exporting production equipment
to other countries. Sometimes this may be part of licensed production
deals, sometimes it may not, but, in the last 18 months, trawling
through the report I have a list of 77 states to which the UK
has supplied either software, technology equipment or components
for overseas production.
Q30 Mr Hamilton: Could you let us
have a copy of that.[3]
Mr McLean: I can. And that includes
a lot of countries which have raised a lot of eyebrows. So I think
that is an important thing to keep an eye on in this globalised
defence world as to the role which the UK is potentially playing
in assisting the development of production facilities overseas.
Mr Parker: We have an example
of a case study where French helicopters built under licence in
India, including all sorts of component parts from around the
EU, have subsequently been given to Nepal—basically attack
helicopters that we do not feel would have been given licences
from within the EU. So that is illustrative of the risk of further
proliferation once the equipment has been made.
Q31 Mr Hamilton: Do any of you have
any evidence that British goods manufactured under licence or
exported from the UK could have been used in Kashmir in that conflict
or have been re-exported for end use elsewhere?
Mr McLean: Of course these Hawks
have not yet been built. The licence was only granted the last
year.
Q32 Mr Hamilton: I mean, any other
arms that have been exported or manufactured under licence in
India.
Mr McLean: Again, the issue is
about risk. It is not actually necessarily about evidence of things
being misused on the ground in Kashmir. We do not have people
on the ground in Kashmir, so we do not have that direct evidence.
But the question we need to be continually asking ourselves and
ensuring that the Government are asking is: Is the criterion being
implemented? and the criterion is a risk-based assessment about
the potential use of this equipment for internal repression or
regional instability.
Q33 Mr Viggers: American legislation
the International Traffic in Arms Regulations (ITAR) severely
limits the export of weapons and technology from the United States.
It is a wish of both President Bush and our Prime Minister that
the UK should be given a waiver from those regulations—the
famous ITAR waiver. This was agreed between the President and
the Prime Minister in February 2001. The House of Representatives
Committee on International Relations produced a very critical
report which said that the British export licensing system was
porous. What is your view of the US House of Representatives Committee
on International Relations' report which criticised British regulations?
Do you think these criticisms were valid?
Mr McLean: I think one of the
things they were looking for was a notification of onward exports
of equipments within which would have been US components. I think
that is something which actually we would encourage the UK to
provide to the US. I think it would be very useful in terms of
beginning to establish a greater transatlantic dialogue on export
issues and a potential convergence in export policy between the
UK and the US. I think it is also actually the type of end-use
agreement that we would encourage the UK to ensure is inserted
into licences which we are granting to other countries as well.
Obviously, if we are expecting that to happen of the recipients
of British arms, then I think it is only fair that we would be
expected to do it to the US as well. So I think that particular
criticism we would share. If the UK did introduce that system,
it would be very positive.
Mr Sprague: There was another
quite stinging criticism from the US report that I think is quite
relevant. They make a point around the five nations' agreement,
in that the UK has agreed prior notification for re-export for
commercial reasons and the American committee quite rightly point
out that that seems to be inconsistent with the view not to want
to do it for matters of national security and US national interest.
That seems to be quite a strong point.
Chairman: Thank you very much indeed
again. If we have any further questions to ask of you, we will
obviously contact you. We hope to produce a report early next
year, for reasons that may be pretty obvious. If there is any
additional information you feel the Committee ought to be aware
of in relation to our inquiry please do not hesitate to contact
us. Thank you very much.
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