Scrutiny of Arms Export Controls (2009): UK Strategic Export Controls Annual Report 2007, Quarterly Reports for 2008, licensing policy and review of export control legislation - Business and Enterprise Committee Contents

Annex 1: Letter from the Chair of the Committees to the Department for Business, Enterprise and Regulatory Reform

The Export Control Order 2009

BERR wrote to the Committees on Arms Export Controls on 24 September inviting comments on the draft Export Control Order 2009 by 24 October. In the time available the Committees have not been able to take evidence but I am able to set out below the results of their deliberations on the Order.

Scrutiny of legislation by the Committees

The Committees were given two weeks to comment on the second tranche of secondary legislation in May/June 2008. In their 2008 Report the Committees concluded that two weeks to comment on the second tranche of secondary legislation "was wholly inadequate". In the case of the third tranche we saw parts of the draft on 9 September and a fuller order on 24 September. While we take the points made by Malcolm Wicks in his letter of 17 September and acknowledge that some improvement has been made, we cannot accept that this provides an adequate opportunity to comment on the draft Order, particularly as a substantial amount of the time fell in the summer recess.

Members expressed concern at the terms in BERR's letter of 24 September inviting the Committees to "consider whether the draft Order fulfils the policy commitments that were made in the Government's Further Response". Our primary role is consideration of the policy decisions behind the draft Order, not checking the technical aspects of the drafting.

That said, the state of the draft Order would in our view preclude detailed checking of the technical aspects. The draft we were sent on 24 September did not appear in a form that BERR apparently regarded internally as final—the third paragraph of the preamble (the origin of which was not identified) was in square brackets; so were parts of the definitions of "category A goods", "category B goods", "category C goods", and "goods" in article 2(1), and many (but not all) of the cross-referencing provisions elsewhere; so was part of article 6(2). In addition there were blank parts of schedules referring to existing legislation to be imported, but that might itself contain material that needs bringing up to date or otherwise adapting. The state of the draft has hampered our scrutiny. We request that the Order be put in a state which the Department would regard as fit for signature and laying before being passed to the Committees for consideration.

The fact that the draft Order did not contain an Explanatory Note, or a text of the type of Explanatory Memorandum laid with orders when they are made, was a particular problem. For example, the primary enabling power quoted was section 2(2) of the European Communities Act, the availability of which depends on the existence of Community obligations to implement or supplement. While some were referred to in the text, absence of the other material meant that we were not given a full picture. We do not know whether what is proposed is within the range of what Community Law permits, or what is done separately under the other enabling powers quoted (sections 1, 2, 3, 4, 5 and 7 of the Export Control Act 2002). We request:

a.  a full specification of the Community obligations to be implemented or (in the case of directly applicable ones) supplemented by the draft Order; and

b.  BERR identify the elements of the draft Order that are made under the cited provisions of the 2002 Act.


At paragraph 31 of our last report we welcomed the creation of the new intermediate category—Category B—which covers goods such as small arms. In our view the Government needs to extend this principle to its logical conclusion to bring all goods on the Military List within extraterritorial control. In our view the draft Order should not be enacted until it is revised to bring the trade in all goods on the Military List within Category B (if not already within Category A).

Transport and ancillary services

We note the proposed provisions on transport services. We have two points. First, would the provisions in the draft Order have brought the activities of Foyle Air in 2000 within control? This company, which was based in Luton, was reported as transporting arms destined for Sierra Leone. (See "Missiles for rebels 'flown to Africa by British firm'", the Independent, 16 May 2000.) Second, we question the need to exclude from the provisions UK sub-contractors to a UK concern that provides transport services. In our view, if they were included it would increase the effectiveness of the controls.

Goods in transit

The changes in the third tranche of secondary legislation ensure that licences will always be required for Category A goods transiting or transhipping the UK and that licences will be required for Category B goods for a specified list of destinations of concern. We have two questions. What powers has the Government to seize goods in transit not falling within these categories? How often has the Government used its powers to seize goods in transit under the existing powers?

22 October 2008

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