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.
Extra-territoriality
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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