Further memorandum from the Foreign and
Commonwealth Office
GOVERNMENT RESPONSE
TO THE
QUADRIPARTITE COMMITTEE
The following provides a fuller response to
those questions posed by the Quadripartite Committee in its Annual
Report of 7 August 2007.
Recommendation 9
The absence of successful challenges in the
courts is not conclusive proof that the legislation is working
satisfactorily but we conclude that it provides an indication
that the legislation is accepted by exporters and interested parties.
Once the case that is currently before the courts is concluded,
we recommend that the Government supply us with a note describing
the case and the lessons, if any, that it has for the operation
of legalisation. (Paragraph 44)
The case in question was the application for
Judicial Review brought by R Hasan against the Secretary of State
for Trade and Industry. The case was heard on 10 and 11 October
2007 in the High Court, Queens Bench Division. A full transcript
of the decision is now available at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2007/2630.html&query=
hasan&method=boolean
The claim, as originally lodged, sought to challenge
the decisions to issue 27 Standard Individual Licences for Military
items exported to Israel during the quarter April to June 2006.
However, the claimant subsequently accepted that there was no
proper basis upon which the grant of these 27 licences could be
challenged and lodged amended grounds, alleging that the Government
was obliged, in making its quarterly report, to give reasons to
show that there had been compliance with the criteria in the case
of each export licence granted. So the case was ultimately about
the publishing of reasons for licensing decisions, not about the
licensing decisions themselves.
The claim was rejected by the High Court, but
the appeal process may not have yet been exhausted. The Government
therefore believes that it is advisable not to comment further
until the case has been finally resolved, at which point it will
provide the Committee with an updated statement.
Recommendation 22
From the information we obtained during the
inquiry we conclude that the system for assessing applications
against Criterion 8 appears sound and that it is underpinned by
a robust methodology. We recommend that the Government publish
the methodology in the Annual Report on Strategic Export Controls
along with a list of the countries on the IDA list, as supplemented.
(Paragraph 119)
The Government is still considering the new
methodology for assessing applications against Criterion 8.
Recommendation 52
We recommend that the Government in responding
to this Report explain how the existing WMD end-use controls work
and why no prosecutions have been initiated. (Paragraph 258)
Since 1989 a WMD end use control has been in
force in the UK, allowing the government to impose an export licensing
requirement on goods, software or technology which are not normally
controlled, if the exporter knows, suspects or has been informed
that they are or might be intended for any relevant use in connection
with WMD. This WMD control was primarily intended to cover the
physical export of goods or technology from the UK.
The Export of Goods, Transfer of Technology
and Provision of Technical Assistance (Control) Order 2003 enhanced
the existing controls on the transfer of technology for WMD, by
making it unlawful (for anyone in the UK or any UK person or legal
entity anywhere in the world) to provide, or facilitate the provision
of, technical assistance related to a relevant use (defined under
the Order, as "in connection with the development, production,
handling, operation, maintenance, storage, detection, identification
or dissemination of chemical, biological or nuclear weapons or
other nuclear explosive devices, or the development, production,
maintenance or storage of missiles capable of delivering such
weapons") in WMD, to a destination outside the EC, without
first obtaining a licence. These controls apply where the supplier
of the technical assistance or technology is aware, or has been
informed by the Government, that it is intended for any relevant
use in connection with WMD (in contrast with the pre-existing
end use control relating to the export of goods and technology
for WMD purposes. Under these new controls there is no requirement
to apply on the basis of "suspicion" of WMD use, although
we do advise that all reasonable enquiries are made should there
be any suspicions). Technology transfers within the EC, and even
within the UK, are now controlled where the supplier knows at
the time of transfer that the technology will be transferred outside
the EC for a relevant use.
There have been two successful prosecutions
under the WMD end-use control in recent years. In 2000-01 Abu
Bakr Siddiqui was given a 12 month suspended sentence for exporting
equipment to Pakistan, including a five-ton crane and a quantity
of aluminium. And in 2003-04, David Lee Nicklin was fined £1000
for exporting aluminium to Pakistan.
As set out in the earlier response to Recommendation
24, all decisions to prosecute are made in accordance with the
Code for Crown Prosecutors, ie that there is a realistic prospect
of conviction and that it is in the public interest that the case
should be prosecuted. Cases involving end-use controls are no
different. Given the general seriousness of this type of case,
where there is evidential sufficiency a prosecution will usually
be in the public interest. It should be noted, however, that cases
of end-use control can be particularly difficult to prosecute
because it can be hard to demonstrate that the exporter had the
knowledge or suspicion at the time the export was made that the
goods were going either to a WMD programme or a country of concern.
All licence applications involving the WMD end use control are
rigorously assessed by BERR prior to issue, and this includes
an assessment of the risk of diversion and specific checks on
all entities known to be involved in the transaction, both within
the UK and after export. However, if diversion is subsequently
found to have occurred, proving the exporters knowledge at the
time of the export may be difficult due to transit and trading
practices. Goods at sea are frequently traded numerous times before
they end up at their final destination, and what is shown as the
destination on the paperwork at the point of export may be thousands
of miles from the place where they end up.
Recommendation 55
We recommend that the Government consider whether
the development of e-mail to allow it to be used as a means to
transfer entire software packages or detailed technical manuals
between groups comes within export control and, if it does not,
whether it should be brought within control. Given the pace of
technological change and globalisation of industry we recommend
that the Government carry out a further review of the legislation
in five years. In the meantime we recommend that the Government
set up an ongoing internal review which responds to technological
and global developments and examines best practice and innovative
ideas that enhance the effectiveness of export controls in other
countries. (Paragraph 272)
The Government remains committed to the principle
of a bi-annual review of technological developments, but considers
that it would not be appropriate to instigate the first review
at the present time, when a wide-reaching review of export controls
is in midstream. Later in 2008, all decisions of principle arising
from the 2007 review will have been addressed and the extent and
nature of any changes will be evident. At that stage the Government
will start to address implementation and timing issues and can
conduct the first review in parallel with that process.
Recommendation 67
We recommend that the Government improve the
arrangements for monitoring and controlling large volumes of weapons
that enter the UK for destruction or re-export.
In addition, we recommend that the Government
provide a full account of the 200,000 assault rifles that were
imported into the UK from the former Yugoslavia between 2003 and
2005, explaining how many were made unusable and how many were
re-exported. (Paragraph 310)
The Home Office will provide information about
internal monitoring and control of firearms separately.
Recommendation 86
We recommend that section 1 (Policy Issues Relating
to Strategic Export Controls) of future Annual Reports be widened
to include a detailed report on UK export control policy as a
whole along the lines of that provided in the Swedish Annual Report.
We welcome the Government's offer of a "Restricted"
report on outreach and recommend that the Government provide such
a report at the same time that it publishes its Annual Reports
on Strategic Export Controls. (Paragraph 376)
The FCO will provide a "restricted"
summary of HMG outreach activities in 2007 once the details have
been finalised.
Recommendation 88
We recommend that the Government make the following
changes to its Quarterly Reports:
— Divide up information on financial
values and descriptions between Military List items and "Other".
— Combine the information on financial
values, number of licences issued and descriptions to give a better
indication of the volume of each type of goods licensed for export.
— Provide more systematic information
on the type of end-user.
— Provide information on the final
destination of goods covered by "incorporation licences".
— Provide separate information
on each license denial with a description of the goods covered
the reasons for the denial. (Paragraph 382)
The Government confirms our commitment to make
the changes to quarterly reports in 2008 as agreed in our previous
response, and that the changes will be carried over to the searchable
database when it is up and running. The Government would be grateful
for the Committee's comments on our suggestion of the possibility
of replacing the "rating" with the case summary description
(as used for issued licences) in the refusals table.
January 2008
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