House of Commons - Quadripartite Committee

Quadripartite Select Committee First Report

6 EU Regulation

138. The EU Code of Conduct on Arms Exports forms the basis of the UK's decision-making process for licence applications. The Code was adopted on 8 June 1998 and it contains political commitments, but is not legally binding. It represents minimum standards which all member states have agreed to apply to exports of controlled goods. These standards are defined through a common set of criteria to be used in deciding whether proposed exports should be allowed. The Government has published consolidated EU and national criteria which explain how it interprets the terms of the Code.[214]

Review of the EU Code on Arms Exports

139. As our predecessor Committees stated in their last two Reports,[215] the EU Code on Arms Exports has been subject to a fundamental review and it was believed that the review was drawing to a close as the Report in 2004-05 was produced in March 2005. The Minister of State at the Foreign and Commonwealth Office, Dr Kim Howells MP, explained:

the revised code is certainly agreed […] at a technical level and the Council has agreed to adopt the new arrangements at an appropriate juncture. The new arrangements should see a legally binding common position which will further enrich and entrench Member States' strong commitment to common standards. The main changes envisaged are these: an increase in the scope of the code so that its criteria cover all applications from brokering, transit, trans-shipment and intangible technology transfer licences […] in addition to physical exports that can be uncovered, […] and an obligation on Member States to refuse export licences if they consider that there is a clear risk that the items covered by the licence will be used to commit serious violations of international humanitarian law.[216]

140. We invited the Minister to name the member state or states blocking the implementation of the revisions but in the interests of securing a consensus he and his officials refused.[217]

141. We conclude that the revisions to the EU Code on Arms Exports as described by the Minister are welcome and we congratulate the Government for its part in securing the changes to the Code. We conclude that the revisions should strengthen the Code and should ensure greater consistency, responsibility and transparency in the exports of arms across the EU. It is therefore all the more frustrating that the implementation of the revised Code has been blocked by certain EU member states. We appreciate that there is little that the Government can do other than work with other states to achieve the consensus within the EU necessary to allow the implementation of the new measures. We express the hope that during 2006 the revisions will be implemented.

PEER GROUP REVIEW

142. The implementation of EU Council Regulation 1334/2000 on the control of dual-use items in an enlarged EU was reviewed in 2004. The review revealed discrepancies regarding implementing legislation, industrial awareness programmes, in the technical capacities available to national authorities to evaluate licence applications and classify items and as regards the intelligence infrastructure. The review also found that the application of the dual-use regulations differed with regard to, inter alia, the use of the catch-all clause, the implementation of denial exchanges, intangible technology transfer controls and transit and trans-shipment controls.[218] In addition, Regulation 1334/2000 needs to be amended to comply with UN Security Council Resolution 1540 of 2004, regarding transit and brokering controls for weapons of mass destruction.

143. The Minister explained the progress that had been made:

the peer review identified a number of recommendations for further action, both at national and EU level, and work has focused on the broad areas identified in the Council's statement of December 2004. The main achievements have been the following: improved information exchange[, …] discussion aimed at minimising divergent practices on textbook authorisation, work towards a review of the regulation as regards dual-use goods in transit or trans-shipment, the establishment of a pool of technical experts on recognition of dual-use items subject to control, agreement to establish an electronic database to record denial notices made by Member States under the regulations—which would be very, very helpful—a comprehensive review of licensing and customs practices regarding control enforcement, an examination of the administration, the catch-all control, which can be used to control export of non-listed goods which are destined for use in a weapons of mass destruction programme. […] progress on a number of issues, including how to achieve greater convergence in the use of the various kinds of authorisations and of practices concerning the implementation of the catch-all clause, or the most efficient way to carry out controls on transit and trans-shipment, will be made in the light of an impact assessment study being conducted on the Commission's behalf. These and other outstanding issues will be addressed in the communication that the Commission will present to the Council this year, 2006.[219]

144. We conclude that the recommendations produced by the peer review on the implementation of EU Council Regulation 1334/2000 have identified a number of areas which need to be addressed urgently. Specifically, Regulation 1334/2000 needs to be amended to comply with UN Security Council Resolution 1540 of 2004 in respect of transit and brokering controls for weapons of mass destruction and to improve information exchange among EU countries about dual-use licences issued. We shall monitor progress on the implementation of the review's recommendations.

UNDERCUTS

145. EU member states circulate through diplomatic channels denials of licences refused in accordance with the EU Code on Arms Exports, together with an explanation of the reasons that a licence has been refused. Before another member state grants a similar licence, they must consult the denying member state, and give an "undercut notice", with a detailed explanation of their reasoning, if they decide to go ahead. Our predecessor Committees in their last Report considered that "the future level of undercuts and denial notifications will be an important indicator of how the revisions to the EU Code improve consistency of the Code's application across member states".[220] We agree with their assessment. In reply to the Report last year the Government said that it "shares the Committee's desire for increased transparency and convergence in the use of the EU Code on Arms Exports across member states", and it "will propose measures aimed at increasing transparency and coherence during our Presidency of the EU in the latter half of this year".[221] We recommend that the Government report the outcome of any measures relating to undercuts that it proposed during its Presidency of the EU in order to increase transparency and coherence. We recommend that the Government publish the total number of UK undercuts along with a summary of the issues in future annual reports on strategic export controls.

CRITERION 2, HUMAN RIGHTS AND SAUDI ARABIA

146. Criterion 2 of the EU Code on Arms Exports requires:

The respect for human rights in the country of final destination

Having assessed the recipient country's attitude towards relevant principles established by international human rights instruments, Member States will:

a) not issue an export licence if there is a clear risk that the proposed export might be used for internal repression.

b) exercise special caution and vigilance in issuing licences, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the EU;

[…] Internal repression includes [inter alia] torture and other cruel, inhuman and degrading treatment or punishment, summary or arbitrary executions, disappearances, arbitrary detentions and other major violations of human rights and fundamental freedoms as set out in relevant international human rights instruments, including the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.

147. In its memorandum in December 2005 to us the Government stated that it:

takes its commitments to human rights very seriously. Respect for Human Rights is an integral part of HMG's export control policy. Indeed, Criterion 2 is specifically concerned with human rights and provides that HMG 'will not issue an export licence if there is a clear risk that the proposed export might be used for internal repression'.[222]

148. In its 2005 Human Rights Annual Report the Government described the situation in Saudi Arabia as follows:

There has been a small but significant improvement in the situation in Saudi Arabia since our last Annual Report. However, the Saudi government has continued to violate human rights, including by restricting freedoms of expression and press, assembly, association, religion and movement. The government also continues to discriminate against women, foreigners, non-Muslims and non-Sunni Muslims and to impose strict limitations on workers' rights.

We estimate that the Saudi authorities executed around 52 people in 2003 and approximately 31 in 2004. They were executed for murder, drug offences and rape. This remains one of the highest figures in the world.

The judicial and administrative authorities impose amputation for crimes such as theft.

Judicial punishment can include flogging. Some 15 demonstrators were arrested following a public demonstration in December 2004 in Jeddah and sentenced to flogging.

Reports of torture and prolonged incommunicado pre-trial detentions continue.[223]

149. According to the quarterly reports for 2005 the Government gave consent to licences for exports to Saudi Arabia which included the following:

April to June 2005 Quarterly Report: gun silencers;[224] and

July to September 2005 Quarterly Report: tear gas/riot control agents.[225]

150. We asked the Minister to justify these exports to Saudi Arabia, specifically how they did not breach Criterion 2. He replied that "every export licence application is certainly considered against Criterion 2 on a case by case basis, we pay particularly close attention to Criterion 2 for Saudi Arabia" and that decisions were made "in the light of an up to date assessment of the way in which the specific equipment would be used by the specific end user".[226] The Minister assured us that, in the face of broader strategic interests, the Government "would not nudge aside our prime consideration which is Criterion 2".[227] Trevor Moore, Deputy Head of Arms Trade Unit, Counter-Proliferation Department at the Foreign and Commonwealth Office, added that "we have the criteria and then we have the other factors which are in the list and appear after the criteria. The criteria come first and then we look at the other factors".[228]

151. Operative Provision 10 of the EU Code on Arms Exports specifies that member states may where appropriate also take into account the effect of proposed exports on their economic, social, commercial and industrial interests, but that these factors will not affect the application of the criteria in the Code. The Government has stated that it will continue, when considering export licence applications, to give full weight to the UK's national interest, including:

a) the potential effect on the UK's economic, financial and commercial interests, including our long-term interests in having stable, democratic trading partners;

b) the potential effect on the UK's relations with the recipient country;

c) the potential effect on any collaborative defence production or procurement project with allies or EU partners; and

d) the protection of the UK's essential strategic industrial base.

In the application of the above criteria, account is taken of reliable evidence, including for example, reporting from diplomatic posts, relevant reports by international bodies, intelligence and information from open sources and non-governmental organisations.[229]

152. We acknowledge that Saudi Arabia is an important ally of the UK but its human rights record is, notwithstanding the recent slight improvement, bad. The UK Government is to be commended for its candour in its 2005 Human Rights Annual Report in describing recent abuses. The EU Code is clear that breaches of human rights have to be taken into account in considering applications for arms exports. Given the Government's assessment of human rights in Saudi Arabia, we recommend that all applications from Saudi Arabia should be considered more carefully.

153. As Trevor Moore indicated, in the case of Saudi Arabia other factors—it appears, the National Export Licensing Criteria—played a part in the consideration of the decision to issue licences. We are unclear about the weight attached to these factors and whether they offset Criterion 2. We conclude that transparency in this important area can be improved if the Government takes two steps. First, as we recommend at paragraph 50, the Government should, on the request of the Quadripartite Committee for an explanation of a decision to grant a licence, provide a short resume—under a security classification, if necessary—of the considerations which informed its decision. We anticipate making such a request where it appears to us that an application may not meet the criteria in the EU Code on Arms Exports. Second, we recommend that in those exceptional cases where the Government decides to attach weight to the National Export Licensing Criteria, in order to issue an export licence, the Government identify the licence in the quarterly report on strategic export controls and explain the factors that justify its decision.

154. We note that in responding to a recent recommendation by the Foreign Affairs Committee—that the Government include a detailed explanation of export licence decisions in each of the countries of concern sections of the Human Rights Annual Report[230]—the Government said it:

would be pleased to provide additional information. However, we believe that the best place for this information to be made available is in the Annual Report on Strategic Export Controls, rather than the Annual Report on Human Rights. This would allow us to comment on the countries of concern with regards to all the 8 Criteria of the Code of Conduct for export controls, rather than just Criterion 2 which covers human rights. We are already in consultation with the Quadripartite Committee, other Government Departments, Non-Governmental Organisations and industry on how best we can improve the layout and content of the Annual Report on Strategic Export Controls, to which we will now add the Committee's recommendation for further consideration.[231]

155. We welcome the Government's proposal to provide additional information about strategic exports to countries of concern in future annual reports on strategic export controls. We recommend that in responding to this Report the Government set out the selection criteria for placing countries on a list of those giving rise to concern. In our view the starting point should be those countries listed as "Major countries of concern" in the Human Rights Annual Report but supplemented with those countries that have received a denial from the UK government or any EU government because an export would breach the EU Code on Arms Exports. We recommend that the Government explain in future annual reports the reasons for granting licences for exports to countries on the list. Finally, we conclude that the list may provide a means by which the Government could improve transparency in the reporting of open licences by providing detailed information on dual-use exports to countries of concern.

EXPORTS TO ISRAEL

156. We also raised the licensing of exports to Israel. The Minister confirmed that the policy had not changed since 2002: no weapons, equipment or components which could be deployed aggressively in the Occupied Territories would be licensed for export from the UK to Israel; and the Government did not take into account assurances given by the Israeli Government concerning the end-use of exports.[232] The Minister explained that, on equipment that could be:

deployed aggressively[, …] we would have to make a judgment on that [and] I can imagine, […] almost any piece of equipment […] could be used aggressively, especially in occupied areas, there is no question about that, and we have to be very, very sensitive and very careful in terms of any licences that we would issue to applications for that kind of equipment.[233]

The Minister admitted, frankly in our view, that these decisions were "not easy" and that "it is probably the most difficult part of the world in which to make those decisions".[234]

157. We noted that in 2002 the Government refused 84 Standard Individual Export Licences (SIELs) for Israel, the highest number of refusals for any destination, but this had fallen to 13 in 2004.[235] We put the point to the Minister that this appeared incongruous given the number of deaths in the Occupied Territories had increased.[236] The Minister responded:

there may not be a very direct cause and effect on that, it depends on all kinds of circumstances—what the behaviour of the Israeli border police and army is, it could depend on many things. It could depend on the aggressiveness or otherwise of Hamas or of Islamic jihad, it could depend on anything, and I could imagine that after a very large number of denials of applications, turning them down, rejecting them, perhaps the Israelis have learnt from that.[237]

158. Whilst we are grateful for the Minister's candour in explaining his difficulties in taking decisions on exports to Israel, we do not understand what the policy means. We cannot, for example, see that there is a class of equipment or technology that fits the definition "aggressively deployed" in the Occupied Territories. We recommend that the Government explain the policy—that no weapons, equipment or components which could be deployed aggressively in the Occupied Territories will be licensed for export from the UK to Israel—in its reply to this Report. It would assist us if the Government gave examples of the equipment to which, in the light of the policy, it has refused to grant export licences.

159. The Minister explained that the Government:

look[s] very carefully at the way in which any equipment that has been exported is used and it is an area and two countries that are under very, very intense observation. We have very good teams in Tel Aviv and Jerusalem and we watch very, very carefully what is going on.[238]

160. We recommend that the Government explain how the teams in Tel Aviv and Jerusalem who are observing the use to which exported equipment is put carry out their work and how their work differs from end-use monitoring.

THE "TOOLBOX"

161. Our predecessor Committees were told last year by the Government that work was underway to ensure a consistent approach by EU member states to countries coming out of embargo. This has become known as the "toolbox", which would set in hand a series of procedures that would involve both consultation and three-monthly mutual notification about export procedures and exchange information on what each country has done over the previous three months.[239] Our predecessor Committees welcomed the "toolbox" arrangement, which would apply to countries emerging from embargo, and we endorse their view. We were disappointed to learn that the "toolbox" has not yet been agreed.[240]

162. The EU embargo on arms sales to Libya was lifted at the EU General Affairs and External Relations Council on 11 October 2004. We note that in the first quarter after the embargo was lifted the total value of Standard Individual Export Licences to Libya was £39.5 million.[241] This compares with, for example, £1 million to Algeria in the same quarter. In subsequent quarters the figure for Libya fell back to below £2 million. Graham Glover, Head of Arms Trade Unit, Counter-Proliferation Department at the Foreign and Commonwealth Office, explained the monitoring arrangements that took place:

For Libya the toolbox obviously does not apply because it is not agreed, but there has been discussion of Libya within COARM which [the UK] chaired during our Presidency and which I attend now we have not got the Presidency. We share information about the kinds of licence applications we are getting for a country like Libya, and there is a tour de table when Member States say what they have received, what they have approved and what they have not, so we have internal transparency on that basis but it is not as systematic as is nailed down in the toolbox because it is not agreed yet.[242]

163. We recognise that in the absence of the agreed "toolbox" the Government did as much as could reasonably be expected. In our view the lifting of the embargo on Libya provided an opportunity to test the operation of the toolbox and for the member states of the EU to develop arrangements to share information. We appreciate that the Government has to work with other states to achieve the consensus within the EU necessary to implement the toolbox. We recommend that the Government continue to press for the implementation of the toolbox.

164. As currently envisaged, we understand, the toolbox will only provide for the exchange of information about items on the Military List. We recommend that, in particular if the toolbox were to be applied to China, effective monitoring of post-embargo licensing decisions across the EU cover dual-use items as well as those on the Military List.

China: the EU embargo

165. An embargo on trade in arms with China has been in force since June 1989. Our predecessor Committees had serious reservations about lifting the arms embargo and recommended that the Government should oppose the lifting of the arms embargo on China unless all EU member states gave an absolute assurance that it would not lead to a qualitative or quantitative increase in their exports.[243] Within the EU the embargo has not been applied consistently; our predecessor Committees noted that individual member states have interpreted the embargo in different ways.[244] The UK is the only member state to have published its interpretation of the embargo, which covers "lethal weapons such as machine guns, large calibre weapons, bombs, torpedoes, rockets and missiles; specially designed components of the above, and ammunition; military aircraft and helicopters, vessels of war, armoured fighting vehicles and other such weapons platforms; and any equipment which is likely to be used for internal repression."[245] A groundswell for lifting the embargo has been building. The Brussels European Council meeting in December 2004 marked a change in the collective European position on the embargo which decided to work towards lifting the arms embargo. The then Foreign Secretary told our predecessor Committees that he supported that decision and that the embargo was likely to be lifted during the Luxembourg Presidency of the EU, which would be before the end of June 2005.[246] This did not happen and in their evidence to us the UK Working Group on Arms gave the background to the change as they saw it:

In 2004 EU states also looked afresh at the EU arms embargo on China. […] By early 2005 it seemed the embargo would probably be lifted, but under pressure from the US and following an increase in security tensions between China and Taiwan, most member states have decided that it is somewhat premature to lift the embargo. Not all states agree.[247]

166. The effect that the embargo is having on exports to China was called into question by the evidence we received. The Minister told us that "the UK interpretation of the embargo does not extend to components" and that "aircraft engines and radar therefore are not caught by our interpretation of the embargo".[248] The Minister was adamant that there had been no change in the Government's interpretation of the terms of the embargo.[249] The distinction in the treatment of components which the Government drew we found to be inconsistent, however, with its approach to the export of components to other sensitive destinations such as to Israel.[250] We consider that allowing the export of components will enable the Chinese Government to build up an offensive capability. In addition, sales of European military goods might also provide an insight into how the US military works for Chinese planners because of NATO interoperability, which might assist China in the event of a confrontation with Taiwan. We doubt the coherence of a policy which prevents China purchasing a complete combat aircraft but allows her to purchase aero engines which can be added to aircraft frames in China. In addition, we were dismayed to learn that a Chinese military delegation visited the DSEi arms fair in London in 2005 with the support of the UK Government.[251] We consider that the political will to maintain the arms embargo against China is weakening within the EU and that rather than lift the embargo it is being allowed to wither on the vine. We are concerned that it has become an embargo in a category of its own, increasingly at odds with the terms and scope of other more recent embargoes. As a first step we recommend that the UK Government clarify the status and scope of the embargo on China.

WHAT IS THE PURPOSE OF THE EMBARGO?

167. We asked ourselves what is the purpose of the embargo on the sale of arms to China. It was imposed in response to the Tiananmen Square Massacre of June 1989 in which unarmed protesters were killed by the Chinese authorities. The Chinese Government has barely acknowledged the massacre, let alone expressed any regret, and has given no indication that its policy has changed. Until it does, we consider that there is a strong ethical case for preserving the embargo. The Minister explained that the Government has "a developing dialogue with China on export controls and we have taken a lead on the China leg of the EU Export Control Outreach Pilot project" and that it was "working to foster China's emergence as a responsible global player and to encourage it to define its interests more broadly in somewhere like Africa".[252] But recent press reports indicate that China is pursuing a "hard-nosed and value-free" policy in Africa, to acquire oil, resources and markets in countries such as Zimbabwe, and that it will undermine difficult choices of political and economic reform that governments have to make.[253] The Minister indicated that the Government was "looking […] at trying to persuade China that, for example, its activities to skewer resources in Africa should not be motivated by narrow, short-term economic interests".[254] He made it clear to us that the Government wanted:

to see China's engagement in Africa support democratic and accountable governance and we work very closely with China to achieve that end. It is no good us backing off and trying to say that, well, they are going to do it anyway. If that is the case there is no point in trying to maintain these diplomatic links with China. We do not believe that it is a hopeless case. We think that China can be persuaded to adopt a different attitude.[255]

168. In its 2005 Human Rights Annual Report the Government summarised the situation in China:

The UK continues to have serious concerns about basic human rights in China, including extensive use of the death penalty; torture; shortcomings in judicial practices and widespread administrative detention, particularly re-education through labour; harassment of human rights defenders and activists (NGOs, political activists, journalists and lawyers); harassment of religious practitioners and adherents of Falun Gong; the situation in Tibet and Xinjiang; and severe restrictions on basic freedoms of speech and association.

At the same time we recognise and encourage China's efforts to develop rule of law and its engagement thus far with international human rights institutions and foreign governments on human rights issues.[256]

EMBARGO ON CHINA: CONCLUSIONS

169. We do not downplay the serious dilemma the Government faces in respect of China: how far to engage and make concessions to a government seemingly impervious to calls to respect human rights but which has the potential to undermine arms control across the world. Nor does the Government's 2005 Human Rights Annual Report show a country clearly moving towards the rule of law underpinned by respect for human rights. We share, however, the serious reservations of our predecessor Committees about lifting the arms embargo on China. The embargo may be an imperfect tool and it may be losing its bite but it has a symbolic value which has worth. It was imposed because of the gross abuse of human rights carried out by the Chinese Government in 1989 and we conclude that without clear evidence that China is prepared to respect human rights and behave with responsibility on arms exports the embargo must stay. We recommend that the Government work within the EU to maintain the arms embargo on the People's Republic of China. We further recommend that the Government stay in close contact with its US counterparts on this issue and explain US sensitivities to its EU partners, as part of its broader efforts to strengthen trans-Atlantic ties and to ensure the embargo stays effective.

Extending the list of banned items of torture

170. Since 1997 there has been a ban on the export and transhipment from the UK of certain equipment designed primarily for torture. The banned equipment includes portable devices designed or modified for riot control purposes or self-protection to administer an electric shock, including electric-shock batons, electric-shock shields, stun guns, and tasers, and specially designed components for such devices, leg-irons, gang-chains, shackles—excluding normal handcuffs—and electric-shock belts designed for the restraint of a human being.[257] Subsequently extra-territorial controls on trafficking and brokering in torture equipment were enacted under the Export Control Act 2002.[258]

171. Our predecessor Committees noted last year that the agreement of a Council Regulation on prohibiting trade in equipment related to torture and capital punishment was overdue and that a draft was being considered.[259] We are pleased that, as the Government explained, the EU has adopted EC Regulation No. 1236/2005 concerning trade in certain goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment and that the Regulation will come into force on 30 July 2006.[260] It will ban trade in certain goods designed to restrain or execute human beings and will introduce controls on the export of other items that could be used for torture or cruel, inhuman or degrading treatment. Our predecessor Committees were concerned lest the controls in the proposed EU Regulation on trade in torture equipment be weaker than those currently applied by the UK.[261] The Government assured us that "the terms of the Regulation will allow the UK to maintain our current prohibition on the export of leg-irons, gang chains, and other items, and represents a strengthening of collective EU export control".[262]

172. Mark Thomas, who was nominated by Amnesty International UK to give oral evidence, proposed the inclusion of a number of additional items on the banned list, some of which he showed to us:

thumb cuffs […] you can see that […] they have serrated edges on the inside and you put someone's thumbs inside them. There have been substantial reports on them being used by the Chinese in Tibet, and they are also applied behind the back, so you can imagine that that would be an extremely painful, degrading and ill-treating process. These are not included on the current list; wall cuffs are not included on the current list; sting sticks, which are made in China—they are about two to three feet long, they are a metal rod with barbs all around it. There is no earthly reason, other than to do severe damage with them, for these things to exist. It is perfectly legal for me […] to go and broker these things.[263]

Amnesty International UK's memorandum to the Committee contains photographs of these items.[264]

173. Having handled some of the items and examined photographs of the others we conclude that thumb cuffs, wall cuffs and sting sticks can have no function other than to be used as instruments of torture or to inflict cruel, inhuman or degrading treatment or punishment. In our view the case for banning these items immediately is overwhelming. Indeed, given these items can be purchased via the Internet the change is overdue. We therefore recommend that thumb cuffs, wall cuffs and sting sticks be added as soon as possible to the list of items which cannot be transferred or brokered from the UK or trafficked by British citizens anywhere in the world.

174. The introduction of EU Regulation No. 1236/2005 prohibiting trade across the EU in items that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment has the consequence of removing the UK Government's exclusive jurisdiction to add to the list it promulgated in 1997. Graham Glover from the Foreign and Commonwealth Office advised:

Looking ahead to the regulation, thumb cuffs will be on the [EU] regulation when it comes into force on 30 July […] and those will be covered by the EU Torture Regulation. On wall cuffs, we think we do already control wall cuffs as we do other larger handcuffs; we would say that wall cuffs of a particular dimension are actually already covered by our legislation. They would be controlled not banned, but they would be controlled.[265]

175. On the sting sticks, however, the Minister explained that "the exports of sting sticks are not on the list of items to be controlled under the EU Torture Regulation; coverage of the list is a matter for negotiation at EU level, and we will work at that level, certainly, to introduce additional equipment for control such as sting sticks".[266] In a supplementary memorandum the Minister explained:

with the introduction of the EC Torture Regulation, the EC has competence with regard to controls on exports in this area. Article 12 of the Regulation provides that the Commission shall be empowered to amend Annex II and III in accordance with the Committee procedure set out in Article 15. We will work with other EU member states to introduce additional equipment for control under the Regulation where appropriate and necessary.[267]

176. We conclude that the introduction of EU Regulation No. 1236/2005 prohibiting trade across the EU in items of torture is a significant and welcome development. We are, however, disappointed that the commendable lead which the Government has taken in banning the trade in items of torture since 1997 will, with the commencement of the Regulation, be frozen and the only scope for adding to the list is via the EU. We recommend that the Government explain why it did not obtain a derogation which will allow it to add to the UK's banned list and that the Government press the EU to add sting sticks to the controlled list as soon as possible.

TORTURE EQUIPMENT: END-USE CONTROL

177. Since almost anything could be used as an instrument of torture EGAD have argued that trying to come up with a definitive list of torture equipment is a "deeply misguided" approach. In their memorandum they said:

We would like to put on record EGAD's support for NGO proposals for something more effective than is currently being planned to be introduced to control the export of and trade in torture equipment. We believe that the only effective way in which this can be done is through the creation of a torture equipment end-use control. As it is possible to use anything for torture (eg recent reports of the use of electric drills in Iraq for this purpose) you, therefore, need a control mechanism in place which is able to catch anything, rather than going down the EU's deeply misguided and doomed approach of trying to come up with a definitive list of torture equipment items. This is the only logical way in which this can be done, and is based on existing practice with regard to the WMD and military end-use controls. It could be easily achieved by the British Government through the simple expedient of including 'torture' within the 'any relevant use' definition of the existing controls. Whilst we realise that there will be the same inherent problems with such a control as there are with the implementation and enforcement of the existing end-use controls, such an initiative would clearly state that the British Government is taking this seriously and determined to do something effective about it and to give itself the necessary legislative powers to be able to do so.[268]

178. We consider that EGAD make a good point, although we do not accept that a banned list is misguided or that a catch-all provision should replace a list of banned items. As we have said, some items can only have one use and where that use is as an instrument of torture or to inflict cruel, inhuman or degrading treatment or punishment we consider that the most effective way of restricting these items is through a banned list. But control of items capable of both use as instruments of torture, etc. as well as benign purposes should, in our view, also be controlled. We recommend that the Government bring forward a proposal for a torture equipment end-use control to apply to items capable of "dual use" as instruments of torture or to inflict cruel, inhuman or degrading treatment or punishment as well as for benign purposes and seek an amendment to the EU Regulation No. 1236/2005 to give effect to the proposal.

214 European Union Code of Conduct on Arms Exports, Council Document 8675/2/98 (henceforth "EU Code on Arms Exports") and see HC Deb, 26 October 2000, col 203W and http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1014918697565 Back

215 Defence, Foreign Affairs, International Development and Trade and Industry Committees, First Joint Report of Session 2003-04, Annual Report for 2002, Licensing Policy and Parliamentary Scrutiny, HC 390, paras 108-14 and HC (2004-05) 145, paras 83-86 Back

217 Qq 306-09 Back

218 Council of the European Union, Progress Report on the implementation of Chapter III of the EU Strategy against the Proliferation of Weapons of Mass Destruction, document 15246/04, Brussels, 3 December 2004, and Implementation of the recommendations of the peer review of member states' export control systems for dual use goods, Document 15826/05, Brussels, 15 December 2005 - http:// register.consilium.eu.int/pdf/en/05/st15/st15826.en05.pdf. See also Stockholm International Peace Research Institute, SIPRI Yearbook 2005: Armaments, Disarmament and International Security, Oxford University Press, 2005, pp. 699-719 ("Transfer controls" by Ian Anthony and Sibylle Bauer), and SIPRI Yearbook 2006: Armaments, Disarmament and International Security, Oxford University Press, 2006, pp 775-97 ("Transfer controls" by Ian Anthony and Sibylle Bauer), and Council of the European Union, 2630th Council Meeting General Affairs and External Relations, Brussels, General Affairs, Press Release no. 15460/04 (Presse 343), 13 Dec. 2004, p 17 - http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/83083.pdf. Back

219 Q 265 Back

220 HC (2004-05) 145, para 95 Back

221 Cm 6638, p 9 Back

222 Ev 126, para 18 Back

223 Cm 6606, p 78. See also Ev 158, para 3 ff. Back

224 Strategic Export Controls Quarterly Report: April - June 2005, Saudi Arabia - http://www.fco.gov.uk/Files/kfile/strategicexportcontrolsreportaprjun2005%20(2).pdf Back

225 Strategic Export Controls Quarterly Report: July - September 2005, Saudi Arabia - http://www.fco.gov.uk/Files/kfile/strategicexportcontrolsjulsep2005.pdf Back

226 Q 289 Back