Examination of Witnesses (Questions 1-29)
ROB PARKER, OLIVER SPRAGUE AND MARTIN BUTCHER
13 DECEMBER 2010
Q1 Chair: Good afternoon,
Mr Sprague, Mr Parker and Mr Butcher. Welcome to the first sitting
of the Committees on Arms Export Controls in this Parliament.
It is very good to see you. We want to put a number of questions
to you. As this is the first Session under the new coalition Government,
I shall start by asking each of you to highlight, in a few sentences,
the policy differences between the present coalition Government
and their predecessors. What are the policy differences that please
you and what are the policy differences that displease you? What
are the pluses and minuses, as you see it, of the change of Government?
Mr Sprague, would you like to start?
Oliver Sprague: In general, the
impression that we have had from Ministers and civil servants
is that many of the issues that were of concern to the previous
Government remain as a focus of this Government, with some caveats.
For example, things such as the arms trade treaty remain as a
policy commitment, although we have concerns that that may not
be as strong a priority as it was. I am sure that we will elaborate
on that later. There are other issues on which I think progress
might be difficult—for example, military end-use controls.
We are concerned about things such as the torture end-use control
not being implemented yet.
Rob Parker: From our perspective,
it's perhaps not a policy change, but a continuation, with a bit
of a refocusing on working in contexts of fragility and where
there are conflict-affected communities. The previous Administration
certainly were interested in conflict prevention. There was some
strong policy development in the Department for International
Development, but recently some of those policies have been perhaps
consolidated to a certain extent in the strategic defence and
security review around the issue of upstream conflict prevention,
as the Secretary of State called it. We're very keen to see the
detail of that and to work with the new Administration on looking
at what it looks like in terms of preventive diplomacy, boots
on the ground and so on.
Martin Butcher: At this point,
I would echo what my two colleagues have said. I don't have anything
particular to add to that.
Q2 Nadhim Zahawi: Thank you
for coming, gentlemen. You've raised concerns about the coalition
Government's policy on prioritising the commercial potential of
arms exports. Are there any specific areas where you suspect that
this commercial potential may be prioritised at the cost of conflict
prevention, sustainable development or a responsible arms trade?
I want to push you on the specific areas where you think this
may be problematic.
Rob Parker: If I could answer
from my perspective, it is probably important to give a quick
bit of context. No one on this panel is coming from the ideological
perspective of being against the arms trade, so we don't actually
have a problem with promoting UK exports per se. Our basis for
engaging with the issue is more around restraint, risk analysis
and regulation. With that in mind, there have been two recent
policy commitments. One relates perhaps to commercial foreign
policy, and UK arms exports may play a part in that. The other
relates to the focus on conflict prevention. Both those policy
commitments will entail using UK staff overseas in some way.
My concern is that, at the moment, the export
control regime is based quite heavily on risk assessment. One
vital element of that risk assessment, which the UK is rightly
recognised for, is this country's diplomatic networks and its
ability to use them to assess the appropriateness of potential
UK arms exports and the risk that they may be diverted or misused.
There is perhaps a concern that there is a dual role, with one
hand potentially imposing some kind of restraint by looking at
appropriateness and risk, and the other hand promoting. Without
the detail of how that would be worked out, it is difficult to
say how it will play out.
In terms of the conflict prevention aspect,
one vital element of upstream conflict prevention is, again, the
diplomatic networks—the soft diplomatic skills and the knowledge
and analysis of what is actually going on in-country. In come
contexts, the UK's diplomatic and political leadership and pressure
would best be used in promoting the kinds of political and social
development and reform processes that address the drivers and
the causes of conflict. If the personnel involved are, at the
same time, being asked to promote arms exports, there are potentially
competing or conflictual agendas.
I don't think that will play out geographically
in the places where there is the most acute conflict, because
I don't think for a minute that the UK is thinking of promoting
arms exports in the likes of Somalia, Afghanistan or south Sudan.
I don't mean to single places out, but in our experience, working
in places such as Kenya, Uganda and Nepal, the UK can play a really
strong role diplomatically and politically in promoting the processes
that address the causes of conflict through the promotion of the
rule of law, good governance, inclusion and the participation
of the public in decision making on these issues. That is a really
key role, which seems to be being prioritised, but it is not clear
how the Government will reconcile the promotion of that role for
its overseas personnel with the commercial foreign policy. That
is by no means to say that the two can't co-exist; it is more
a case of trying to flag up where there might be a conflict.
Q3 Nadhim Zahawi: Mr Sprague
or Mr Butcher, is that how you feel?
Oliver Sprague: Yes, broadly.
This isn't an area where a human rights organisation like Amnesty,
with our mandate, has a great deal to say, other than we concur
largely with what my colleague has just said.
Martin Butcher: I would echo those
comments.
Q4 Nadhim Zahawi: Very briefly,
have you had discussions with Ministers about those specific concerns?
Rob Parker: We've raised them
broadly, but because the policy commitments on the table are fairly
broad, we hope that we will be able to get engaged in some way
in the new year in the development of the building stability overseas
strategy if there is a consultation process. We can then raise
the practicalities of how you go about delivering on these policy
commitments.
Oliver Sprague: It's worth just
adding as a quick follow-up point that Amnesty recognises that
in certain conflict situations, the rule of law, the rule of policing,
training, accountability, human rights standards etc. are all
very important in improving democratic situations, but the key
is that the risks are well managed and that when we talk about
human rights training, we actually mean thorough, decent, robust
human rights monitoring and standards.
Q5 Chris White: I have a supplementary
question. You mentioned conflict and risk. Do you have any evidence
that human rights are taken into account when these decisions
are being made?
Rob Parker: UK exporting decisions?
Chris White: Yes.
Rob Parker: No. We are perhaps
flagging a potential area that is not clear yet. If the same personnel
who should on the one hand be providing Her Majesty's Government
with an analysis of, say, the human rights situation on the ground
in a country that is requesting UK arms and on the other hand
they are being asked to promote UK exports, we would say that
there is potentially a risk if that is not clear. The UK would
then potentially be at risk of breaching its commitments under
the EU common position, whereby the promotion of exports should
not in any way undermine the other criteria around human rights.
Oliver Sprague: It is also worth
saying that we are very early into the new Administration. I think
that there have only been two quarterly reports published as yet,
so it's actually quite difficult to look at specific cases of
licensing to see whether there has been a shift in practice in
licences. That is something that will probably come across throughout
our evidence on a lot of related issues. It's certainly too early
to tell. So what we are doing here is flagging up concerns that
we might have, which might appear over time.
Chair: We are now going to come to a
question about the licensing criteria.
Q6 Ian Murray: You have already
touched on the licensing criteria. The UK working group argued
that the UK's consolidated criteria for assessing licences should
be updated along the lines of the EU, particularly with regard
to humanitarian aspects. What do you think should be changed in
the Export Control Act 2002 and why, particularly with regard
to the EU common position of 2008?
Oliver Sprague: The thing to recognise
here is that in 2008 the EU code of conduct was turned into a
common position, which is a legally binding obligation on member
states to implement that agreement in their national licensing
legislation. If you look at last year's UK annual report, the
impression given is that it puts the common position as the policy
guidance for arms export licensing. However, my understanding
is that that is not the case and that the text of the common position
is not used by licensing officials. Licensing officials use the
consolidated criteria of 2000.
That is important because, as is pointed out
in our evidence, the common position is stronger in a number of
respects, specifically as related to international humanitarian
law, which has been fed into the criteria on human rights violations.
I will just quote you the difference. The difference in the common
position is that it says: "There is a requirement now to
deny export licences where there is a risk that serious violations
of human rights and international humanitarian law might occur."
Under the consolidated criteria that UK licensing officials currently
use, criterion 6 refers to an obligation to only "take into
account" the recipient's record on international humanitarian
law. That is clearly a weaker standard.
You ask how this could be done under the 2002
Act. The 2002 Act makes it quite clear that the Secretary of State
or the Government can produce policy guidance, which can be announced
to Parliament, that will inform the licensing position. Also,
there is a section of relevant consequences of the Act that we
should not ignore. As far as I can see, it would be a relatively
straightforward matter to reflect the exact text of the common
position by issuing new guidance under the 2002 Act.
Q7 Ian Murray: Can I follow
that up with a question about the broader debate on open licences?
I take it from Mr Sprague's answer to that question that the Secretary
of State could essentially promote stricter guidance, particularly
with regard to the humanitarian parts of that particular legislation,
in Parliament if he wished to take that forward.
I will move on to the export control organisations'
encouragement, or apparent encouragement, of general licences
rather than individual licences. Is there a legitimate case for
that particular viewpoint and what would be your response to the
concerns that exist about open licences rather than standard individual
licences?
Oliver Sprague: It is worth stating,
in line with what Rob was saying earlier about opposition to the
arms trade in general, that we are not opposed to the use of open
licences in certain circumstances. We agree that they are a way
of easing the administrative burden both for the industry and
for the Government, and they allow licensing officials to free
up resources and to allocate more to higher-risk transfers and
licensing decisions. The key for us, if there is to be a shift
towards open licensing—we are told that there will be an
increasing shift towards open licensing because of the increased
pressure on licensing staff within the export control organisation—is
that those licences are given only to very unproblematic areas
that would have automatically received a yes decision anyway.
One concern of course is around transparency,
not only for NGOs but for members of the Committee. The information
that is available and reported is considerably less for open licences
than for single individual licences, and some of the problems
are compounded by the fact that much of the information resides
at company level under open licences and not at Government level.
There is a challenge for reporting on those licences.
Chair: We come to the sustainable development
criterion.
Q8 Malcolm Bruce: Criterion
8 of the consolidated EU and national arms export licence criteria
talks of compatibility of arms exports with the technical and
economic capacity of the recipient country, taking into account
the desirability that the state should achieve its legitimate
needs for security and defence with the least diversion for armaments
of human and economic resources. That can be pretty broadly interpreted,
I would have thought.
You say that the Government should ensure that
it includes a full assessment of the risk of unaccountable spending,
as well as corruption, as part of their arms export controls,
and that it should take place case by case and not be restricted
to the least developed countries. Do you have a particular context
in mind? We have had issues relating to Tanzania, for example,
and we have heard of growing involvement in conflict or post-conflict
states, where interpretation of this criterion could cut either
way. If you have to deal with conflict, you want a Government
with the capacity to be secure. On the other hand, you don't want
to supply a civil war.
The first point is this: can you give us a context
as to how you think the criterion should be applied? Secondly,
I gather that the UK used it only once but that France has used
it 63 times, and although the Netherlands has used it once, it
was promoting a seminar to discuss it further. Do you have any
information on whether that seminar has happened, and in particular
why France has used it so much?
Martin Butcher: I can certainly
talk about the second part. This issue is very much under discussion
at the moment. The Netherlands did convene an informal session
of the EU COARM working group on 24 November, following the regular
COARM meeting. Several of our colleagues were asked to make presentations
to that meeting but the debate that followed was closed to member
states, so it is a little hard for us.
Q9 Malcolm Bruce: Were those
presentations in written form?
Martin Butcher: They were.
Q10 Malcolm Bruce: It is possible
for us to get copies?
Martin Butcher: Yes.
Q11 Chair: Would you send
those to the Clerk?
Martin Butcher: Yes.
It was a little hard for us to know exactly
what followed in the debate, as it was for member state representatives.
We expect that there will be further consultations between EU
member states and civil society and industry on this. In parallel,
I would say that there are a number of Governments who are taking
their own initiatives. For example, Spain is developing a process
to look at how to apply criterion 8, and Germany is actively discussing
with civil society and industry the appropriate methodology.
Q12 Malcolm Bruce: What is
your view on what it's for and how it should be applied?
Rob Parker: I find it hard to
delink criterion 8 from issues around corruption, as well, because
I think, as you say, the wording is very broad and the interpretation
can be very broad. The instances where we've come across something
perhaps a bit more tangible are, for example, things like—in
South Africa—a deal that went through and not only was subsequently
revealed to have included a number of corrupt practices; it also
had a huge impact on the ability of South Africa to develop in
terms of primary education and anti-HIV-type work. The discussions
we've had at EU level with officials around the corruption and
sustainable development issues are that there's certainly an appetite
and a willingness to look at how to address corruption more directly;
but perhaps it's a slightly sliding scale between convenience—how
easy it is to do—and effectiveness.
Q13 Malcolm Bruce: Can I push
you by giving an example? We're in Afghanistan. Our objective
in Afghanistan is to build up the capacity of both the army and
the police to deliver security, yet people might be concerned
if we started to supply the Afghan army with weapons—although
it would be a bit odd if we say we want them to be effective but
we won't supply them with weapons; they'll have to get them elsewhere.
I'm just trying to get a feel for what you as a group of NGOs
feel about these criteria. These are developing countries with
security issues. Should we or should we not be selling them arms
at all, and if we are how does criterion 8 apply?
Martin Butcher: Afghanistan, to
take your example, is a very difficult question. It's very hard
to know what to do. You do have very well documented examples
of weapons supplied to Afghan national forces, to the police and
to the army, simply vanishing from stores—being either sold
or handed over to the Taliban or to other armed groups; but at
the same time, as you say, the objective is to build up the security
of the Afghan Government, so that is clearly a major dilemma for
the Government.
Rob Parker: The crux of it really
is this balance between stabilisation and longer-term development.
It's striking a balance between how you essentially stop the
bullets flying—to enable conditions where longer-term development
can gain some traction—and what role UK arms exports play.
From our perspective on where the balance needs to be struck,
I hark back to the upstream conflict prevention comments I made
about political processes: if your stabilisation efforts, including
potential UK arms exports, are actually part of an inclusive political
process whereby you're not essentially shoring up an elite, which
is going to continue protecting its own interests, but are part
of an inclusive process whereby there is buy-in from more actors
within the country, I think UK arms exports have a significant
role to play. But where it falls down is where the process itself
isn't transparent enough, and inclusive enough, so that you are
actually re-equipping or rearming security services who perhaps
were abusive in the past, or perhaps predatory, and who will actually
maintain some of the existing problems. Basically our answer is
probably that more needs to be done to unpack criterion 8, to
look at how it impacts on these other issues of stability—
Q14 Malcolm Bruce: Was that
what this Netherlands discussion was partly focused on, which
is where your submissions have been of interest?
Martin Butcher: Yes, that's right—how
it can be applied; what those words that you read out really mean,
and how they can be applied in a common way.
Oliver Sprague: As a quick follow
on: in terms of the role of the UK and other Governments in supplying
fairly large amounts of military equipment to both Iraq and Afghanistan,
Amnesty has published quite a lot of material in the past that
shows how the accountability and the rules in place to ensure
that the equipment is used properly, and that there is an adequate
monitor on who is getting what, were not followed. There have
been examples where UK companies have been working with the US
Government. They weren't taking proper account of the serial numbers
of huge numbers of assault rifles. Hundreds of thousands of assault
rifles were given to both the Afghan police and the Iraqi security
services without a proper check on who was getting them.
In our view, training of units of the police
force, especially in Afghanistan, didn't follow the UN basic principles
on the use of force and firearms—basic things like weapons
being stored in a secure facility. Our understanding is that at
least for one unit, training lasted about five days, an assault
rifle was given as part of that training and the weapon was taken
home.
Chair: Dave Watts has a quick supplementary
question.
Q15 Mr Watts: Is that realistic
in an environment like Afghanistan? You seem to be applying the
same standards that you would apply to a modern European country
to the Afghan situation. It is difficult to understand whether
the systems you are talking about could be set up in a place that's
in so much turmoil.
Oliver Sprague: I certainly think
that you should be responsible for the equipment that you supply.
Something as basic as not properly logging the serial numbers
of assault rifles is a basic error. That should have been done.
There are minimum standards of training that are international
standards. You are causing problems in terms of the threat to
UK forces on the ground if proper safeguards are not in place
to ensure that the training of the people being equipped is adequate.
Chair: We will now turn to the arms trade
treaty. Mike Gapes.
Q16 Mike Gapes: The written
memorandum from the working group contains a paragraph that I
find quite worrying. You say the perception is that, rightly or
wrongly, the new UK Government have ceased to provide leadership
on the arms trade treaty negotiation process. Later, you say that
the US, France and Australia are now beginning to dominate the
process. Why do you think that is?
Martin Butcher: It does seem that
the new Government have pulled back somewhat. There is a difference
in positioning on the ATT, and the leadership role appears to
be waning. There is a reluctance to commit, for example, to specific
aspects of treaty content. In the strategic defence and security
review, and in recent responses to parliamentary questions, the
Government have said that they are supportive of the ATT, but
not that they are leading. During the July prepcomms, some states
that looked to the UK for leadership over the past few years have
been concerned that in contrast to previous ATT discussions within
the UN, the UK has been taking a back seat. It was very noticeable,
for example, at the first committee that the UK was very reluctant
to make a statement at all. There is an international perception
that the UK is stepping back from leadership. Because the leadership
has been so marked over the past four years, that shift is being
interpreted as a change in the level of support for the treaty.
Q17 Mike Gapes: Is that due
to a change of personnel, or are these the same people operating
under different instructions?
Rob Parker: If I could just jump
in, it might also be a case of conflicting priorities. At crucial
points in the process, the nuclear non-proliferation treaty was
running at a similar time. Some of the personnel were pulled in
different directions. As I understand it, they are more or less
the same personnel. Whether or not they are receiving instructions
to step back, or whether they are simply not receiving as clear
instructions around the leadership role to play, is unclear.
To a certain extent, we need to own up; we cannot
have it both ways. There was a time when we said that it was not
necessarily the most productive thing for the UK to always be
right at the front, because this is intended to be a global treaty
that therefore needs support from many different areas. But I
think that in addition to the lower profile, the content of the
statements is also less around the need for the treaty to be based
on human rights and humanitarian issues and perhaps more hinting
at the idea that it's a trade agreement, as opposed to something
more.
Q18 Mike Gapes: In the previous
Parliament, we as a Committee discussed the issue of whether you
wanted a treaty or a good treaty, in the sense that you might
be able to get a treaty, but it might not actually be very strong
in its content. We erred as a Committee on the side of a strong,
effective treaty. We also, if I recollect, had a discussion about
the change brought about by the Obama Administration coming in:
the US was then engaged on this, whereas before they'd been very
hostile. Is that part of the reason why the UK is stepping back—because
the Americans are now seen to be crucial to getting an agreement?
Martin Butcher: That could certainly
be part of the explanation. It's clear that the Government is
working together with the US Administration now. To come back
slightly to the point about personnel, the personnel haven't changed.
We do have significant concerns; there seems to be a strong possibility
that when Ambassador Duncan leaves his role at some point in the
first half of next year, he won't be replaced, and that role of
arms control, non-proliferation and disarmament ambassador will
be at least suspended, if not done away with. We have strong concerns
that that would lead to a lack of co-ordination of British policy
and a lack of ability to input strongly into the process.
In meetings with Ministers at the Foreign Office,
representatives from Oxfam and Amnesty have been told that Ministers
are still supportive of the process. Obviously, there has been
cross-party support over the past years as well. It may just be
that at the moment—six months into a new Government with
an awful lot on its plate—there hasn't been a good brief
from Ministers down to civil servants as yet.
Rob Parker: I also wonder if it's
an issue of prioritisation, in terms of the resources put into
thinking through what's coming up. It feels that in some respects,
the UK Government is on the back foot as opposed to the front
foot in terms of the issue of consensus, thinking through scenarios
of how to build support among reluctant states and actually taking
this issue by the scruff of the neck, if you like, and being proactive
as opposed to reacting to things. It's impossible for us to know
what goes on in terms of discussions between Ministers and diplomatic
staff, but the feeling we get is that sometimes, perhaps, the
ideas aren't there, in a sense, to take that leadership role.
Q19 Mike Gapes: Can I press
you on this relationship with the US? There were clearly differences
in approach between the US Administration, even though they changed
their attitude to the treaty, and the UK Government's long-standing
position. Is it still apparent that there are differences in approach,
or are we, in a sense, moving behind the Americans?
Oliver Sprague: Both on the issue
of consensus and, importantly, on the issue of content, there
are a number of noticeable differences. As you'll have picked
up in our submission, for example, we remain concerned that the
US will want to remove ammunition from the scope of the arms trade
treaty. In any treaty that has a humanitarian core—the treaty
is to prevent arms-related suffering around the world—to
remove the very item that is responsible for nearly all deaths
in conflict from a case-by-case risk assessment process seems
to me to be ludicrous.
From our joint discussions with the industry
and with Government in technical meetings about what the UK Government's
policy position on scope should be, the UK Government is very
clear, in my understanding, that ammunition should form part of
the arms trade treaty. There's a difference of opinion there,
and we're not quite sure which way the decision will go in a consensus
process, because with a consensus process, everybody is going
to have to agree and if the US Government make ammunition a red
line, we will be in trouble in two years' time.
Q20 Mike Gapes: Is the two-year
time scale to 2012 still on course, or is it likely to slip?
Rob Parker: I don't know whether
it can slip. It's more a case of, what are we likely to get at
the end of it? What will probably slip is less the time scale
and more the quality of the product. In relation to your earlier
question about whether we want a good, strong, robust treaty but
perhaps not with everyone in it or something that everyone can
sign up to, I think we would agree that if everyone is happy to
sign up to it, the chances are it's not really going to take us
much further. Our concern is that unless progressive states, like
the UK, start putting the time into developing draft treaty text
and applying that at the preparatory committees over the next
year or so, very soon the negotiating conference is going to be
upon us and there will be little chance of getting something with
teeth at that conference. That's where the leadership role comes
back in, because we would very much welcome stronger leadership
on the drafting of treaty text, the running through of scenarios
and ideas, and producing a strategy on how to bring on board some
of the more reluctant states in the very short time that we have.
Q21 Mike Gapes: You talk about
reluctant states. There are 150 countries in favour, but India,
China, Russia and Pakistan are not signed up, and there are a
large number of others, particularly in the Muslim world, who
don't seem to be on board. Are we heading for a situation in which
a substantial part of the importing regions or the exporting regions
or both will not be signed up to the treaty?
Martin Butcher: At the moment,
there are probably only a couple of states, probably Iran and
Pakistan, that are outright and adamantly hostile to even the
idea of the treaty. Other states—the ones you've mentioned—have
concerns about different aspects of it. They would like to see,
in some areas, a weaker treaty. But actual opposition to the treaty
is really vanishingly small. There are concerns that trying to
get all this done in the small amount of negotiating time that
remains might put pressure on treaty content if people don't work
very, very hard at it.
Q22 Mike Gapes: May I ask
one last question? In relation to your own role as NGOs and civil
society organisations, are you confident that you are continuing
to have input, given that the whole idea came out of an NGO initiative
13 years ago? Is the NGO movement internationally still being
listened to by the Government, or has it gone on to somewhere
else?
Martin Butcher: NGOs certainly
still have a strong role. We were very concerned in the summer
at the first two prep comms that about 60% of the sessions were
closed to us. We feel that at such an early stage, which was essentially
a conceptual stage, with nations putting ideas into a basket for
future discussion, rather than a detailed negotiating session,
it wasn't appropriate that NGOs, as stakeholders in the process—as
you say, as initiators of the process—were closed out of
the room. That certainly impacted on our ability to assist, in
particular smaller states—from, say, the Caribbean or Africa—which
have come to rely on NGOs for expertise and support. Many of these
countries will have just one person representing them and often
covering several different things at once. It's very hard for
them to be engaged in a treaty process, which is very important
to them, without support from groups such as ours. As we understand
it, that was an early sign of the consensus process operating,
in that some of the sceptic states said, "NGOs out,"
and the Chair just said, "Oh, okay," to keep the sceptic
states in for the moment. Yes, we have those concerns.
Oliver Sprague: It's certainly
the case that in the UK—not just for the arms trade treaty
but for a whole raft of interrelated UK arms export control policy
decisions—we have been an important joint stakeholder in
all discussions, both with Government and industry. I would say
that everybody has benefited from that process and we've come
out with a stronger agreement as a result. So we would be very
concerned if the role of civil society is removed from the process,
because from all sorts of aspects, as Martin and Rob have said,
we have a lot to give to the process.
Chair: We have another four subjects
to discuss and there are only 20 minutes. Just bear that in mind.
We will turn now to corruption and bribery.
Q23 Mr Donaldson: Criterion
8 was mentioned earlier, gentlemen. In evidence, Transparency
International recommended a new criterion 9 dealing specifically
with corruption. What is your view on this proposal and do you
think there is any realistic prospect of it being taken forward?
Rob Parker: Shall I kick off?
On the one hand we're supportive of the proposal. As we say in
our submission, this would bring EU practice in line with global
norms. I'm thinking in particular of the firearms protocol and
the UN convention on corruption. But it's the art of the possible.
Basically, when you talk to EU officials, as I mentioned before,
there is certainly a willingness to look at the issue, but there
is more of an appetite to look at it perhaps in the users' guide
or in the context of an addition to an existing criterion rather
than creating a new criterion 9. I think it's actually a bit of
a sliding scale between convenience and effort. While the corruption
criterion would potentially be the most effective, it would also
obviously be the most difficult to enforce. We're at the stage
of promoting discussion of what is feasible and what needs to
happen if our collective interest is in ensuring that arms exports
generated from within the EU area do not lead to corrupt practices
and undermine the sustainable development.
Martin Butcher: I would argue
that the United Nations convention against transnational organised
crime and its protocols, which came into force in 2003, have put
an international obligation on all adherent states to work within
international standards on corruption as set out in that agreement.
The arms trade, unfortunately, is somewhat susceptible to corruption.
Clearly, within the EU, having this in some way included in the
common position would be the best way of dealing with the issue
of corruption. Whether it is possible to do that by an entirely
new criterion, as Rob has said, or whether it needs including
in one of the existing criteria is open to debate.
Q24 Chair: May I turn to extra-territoriality?
As you will recall, the previous Arms Export Controls Committee,
in its final report at the end of the previous Parliament, concluded:
"We conclude that we see no justification for allowing a
UK person to conduct arms exports overseas that would be prohibited
if made from the UK." The present Government, in their response
to that report, have basically continued the policy of the previous
Government and are refusing to extend extra-territoriality to
all items on the military list. That refusal of this Government,
continuing the refusal of the previous Government, has to be seen
against the successful agreement between the NGOs and the representatives
from the arms exporters—the agreement you successfully concluded
on extra-territoriality. Notwithstanding the fact that you finally
achieved an agreed position, both the previous and the present
Government have turned down your agreed proposal. In the light
of that, do you feel that we are now into a cul-de-sac on this
issue, or do you wish to see continuing pressure for the extension
of extra-territoriality to all items on the military list?
Oliver Sprague: The first
thing I would say is that, as the UK Working Group, we have long
supported the Committee's recommendation that there should be
greater extraterritorial controls on brokering across the military
list. The case is clear that there are certain categories of military
equipment that are brokered and trafficked around the world that
are not just small arms and light weapons.
Of course, we were disappointed that our joint
proposal, which we worked through with industry, was rejected.
My understanding now is that the olive branch that has been given
to us is that—maybe not every item on the military list—if
we could come up with categories for inclusion in category B of
the new transfer controls, those items will be looked at.
We have already had agreement from the response
to last year in that anti-vehicle landmines will be included in
category B. I'm afraid I have not checked to see whether they
have been included, but I could do so and come back to you on
that. But the commitment from the Government was to put anti-vehicle
landmines, for example, into category B.
We would be keen to re-establish our working
with industry to see if we can come up with a list—if it
is not the entire military list, there must certainly be a case
for putting things such as vehicles, attack helicopters and combat
aircraft into category B.
Chair: Thank you very much. I am sure
that the Committee would be interested to have any further evidence
that you want to provide to us. If there are any specific items
that you are going to offer to the Government under what you have
described as their olive branch, we would appreciate being kept
informed about which ones you think it would be appropriate to
include.
Q25 Margot James: The UKWG
has said that if the EU is going to take more than six months
to introduce a catch-all clause amendment to torture end-use controls,
the UK should act unilaterally. In evidence, you mentioned the
export of sodium thiopental to the US for use in its executions.
Have you had discussions with the UK Government since becoming
aware of this situation, and do you detect a sense of urgency
on their part?
Oliver Sprague: There are a number
of parts to that question. The first is that the issue of sodium
thiopental became subject to a judicial review, which, for obvious
reasons, made it very difficult to have substantive discussions
while that legal review was going on. The result of the review
was that the Government were asked, under powers under the 2002
Act, to put in an emergency order to put sodium thiopental on
to the control list.
Our argument—and we think that we won
the case through our work on the review of the export control
list, and it was certainly a Government commitment—was that
in cases where there was a reasonable risk of goods being used
for torture or capital punishment, the way to control these dual-use
items was through a catch-all clause. In our view, when they became
aware that sodium thiopental was at risk of being used in death
penalty cases in the United States, at that point a torture end-use
control provision would have kicked in.
From our discussions with the Government, there
is a difference of opinion between what we think a torture end-use
catch-all control clause is and what they might think it is. We
think that it is about risk: it is about reasonable knowledge
and where the exporter has—or ought to have—knowledge
that their goods might be used to facilitate torture in death
penalty cases.
It seems that the Government's view is that
the burden of proof in these cases is extremely high, so that
the knowledge has to be almost certain for them to think that
the torture end-use control would kick in. So it is not a risk-based
system; it is a proof-based system.
There is a difference of opinion there that
we need to work through, because certainly we have always looked
at this as a risk-based system. Where there is credible evidence
to suggest that this might happen, a licensing option should kick
in—not if it will happen; but if there is reasonable risk
that it might. That is a very important distinction.
In terms of the timeline, there is already going
to be a delay at the EU level, because the DG Trade, the Commission
and the External Action Service are reorganising from 1 January,
so the actual EU committees that regulate the regulations—the
catch-all clause will come into the EU torture regulation—are
unlikely to meet in the next six months because of the ongoing
restructuring at the European level. Progress on the issue at
the EU level will be slow anyway so, given that this was a commitment
made in 2008 and that we have had this case with sodium thiopentol,
which included, first, a court case and, secondly, a decision
to put an emergency order into the export control legislation,
we think it probably is high time that the Government act first
to put this in place as best practice.
Does that answer your question? Sorry, it was
a very long answer.
Margot James: Thank you—it was
very informative.
Chair: We have one or two countries that
are of concern to us—John Glen.
Q26 John Glen: In your evidence,
you said that arms supplied by the UK to Saudi Arabia have subsequently,
apparently, been used in illegal acts against Yemen—or our
aircraft have been involved in illegal acts against Yemen. Similar
concerns have been expressed about strategic exports to Israel
and Sri Lanka. What is your view about the export control system
generally, and the licensing criteria? They are clearly not fit
for purpose if you can point to such clear breaches. Following
on from that, if you do think that the whole system generally
isn't working, what improvements would you suggest?
Oliver Sprague: In the case of
Yemen, Amnesty produced a report in August 2010, in which we highlighted
in great detail the role of aerial bombardment against the villages
of the Houthi groups in northern Yemen. It is very clear to us
that there was an intensive aerial bombardment, to the point of
destroying infrastructure, religious places and marketplaces,
and flattening buildings—an extremely extensive aerial bombardment,
which we believe raises severe questions about international legal
obligations, international humanitarian laws and such things,
in which there are express prohibitions on deliberately targeting,
for example, civilian infrastructure.
We think there is credible risk that Saudi Arabia
used military equipment of a type supplied by the UK—so,
attack aircraft—in those aerial bombardments. The consolidated
criteria, the common position and the Export Control Act 2002
are very clear that licences will be denied if there is a reasonable
risk that crimes of this nature might take place. In that case,
we have asked for an immediate investigation and review into the
use of UK or Saudi-supplied equipment, and a suspension of export
licences while that review takes place.
One of the things that we were concerned about
in particular, referring back to the open general licensing and
the open licensing discussions that we had earlier, was that two
days after our report was launched, a new open general licence
was issued, and one of the things that it allowed was for spare
parts and components to be supplied to Saudi Arabia in support
for the Typhoon Eurofighter project. In our view, in light of
real, credible risk that this military equipment was used in ways
that would breach the EU common position and the UK relative consequences
for the 2002 Export Control Act, we think it inappropriate to
have a country such as Saudi Arabia as a permitted destination
on something like an open general export licence. We think that
there are already powers to revoke, suspend and amend those licences,
to make sure that no transfers take place until an investigation
has taken place.
John Glen: Is that before it is proven
one way or the other?
Oliver Sprague: Yes. We are not
saying, "Ban all exports to Saudi Arabia." We are saying
that exports should be suspended while an investigation is done
into the role that the Saudi Arabian air force may have played
in the attacks.
Rob Parker: I wonder whether I
might add a little supplementary information. We don't categorise
the system as being broken, in that sense. The role of this Committee
and of us giving evidence are testament to the fact that the system
is open to scrutiny, and that we have an opportunity to try to
make incremental improvements to it by raising issues around the
things we have been talking about today. I would not want to give
the impression that we think otherwise, because we also praise
this system as being one of the most robust of the many that we
work with.
Q27 Chair: I would like to
put another question on another country. In their response to
the previous Committee's report, the Government referred to lessons
learned from Georgia. Are you aware of any breaches of arms export
licensing controls by UK persons or businesses as far as Georgia
is concerned?
Rob Parker: I am not aware of
any.
Oliver Sprague: This may not be
a very satisfactory answer, but it is probably a true one. We
are in the very early stages of a new Administration, so it is
very difficult to pinpoint specific licences of concern, but we
could certainly come back to you in writing on the Georgia question.
Q28 Mike Gapes: I wanted to
follow up on the issue of Sri Lanka. The previous Committee was
very critical of the fact that arms exported during the ceasefire
period were subsequently used in the civil war in Sri Lanka. Has
there been a change of policy on Sri Lanka in recent months? If
you cannot answer now, perhaps you could send us a note with your
assessment of the current position on Sri Lanka.
Oliver Sprague: We can certainly
do that. I am mindful that the Government responded to the Committee
and gave explanations that the licence applications that they
issued were such that there were no risks of the arms being used
in the conflict. There is a wider point there about transparency
and end use. It is actually quite helpful to have that kind of
detailed breakdown across the whole spectrum of problematic arms
licences, probably in annual reports. We could certainly come
back to you in more detail specifically on the Sri Lanka case,
and on whether you as a Committee were satisfied with the responses.
Q29 Chair: One final question,
if I may. As you will recall, the previous Committee was very
firm that our arms export control structure would be greatly enhanced
if we had "no re-export" clauses in our arms export
contracts, yet although the number of other countries that adopt
that as standard practice is quite striking, we were not able
to persuade the previous Government, and I do not think that we
have so far persuaded the present one, that that is a good route
to take. Instead, they have come up with a halfway house in terms
of end-use undertakings. We have had that system running for a
year or so. Do you have any observations as to how well or not
well it is working?
Rob Parker: In terms of the impact
of those commitments, the question is probably one for the Government
to answer, but it seems very unlikely to us that someone would
ring up to announce that they plan to re-export UK equipment to
an embargoed destination. I am not being flippant. It seems a
back-to-front approach to the issue, when we are talking about
destinations that are already prohibited. It seems unlikely that
a UK clause on re-exports would influence the actions of a state
that is set on exporting to an embargoed destination in the first
place.
We see the value of a no re-export clause essentially
as raising the bar in terms of the tools that you have available
for your risk assessment. It is not so much about on-the-spot
enforcement—there is not a lot the UK can do to stop another
country exporting UK equipment. It is more about having that on
a contractual basis, so that the burden of proof for your risk
assessment is less about where someone may have re-exported UK
equipment to, but more about the fact that they breached contractual
obligations to consult with the UK before they did so.
There are a number of elements that would be
useful in terms of sharing information with EU counterparts, for
example, and raising a flag, not necessarily to show that there
was an egregious occurrence as a result of the transfer, but just
the fact that the state or end user was not sticking by its contractual
obligations. It seems to us that it is normal standard operating
procedure for legitimate trade, and people are happy to follow
standard operating procedure. There will not be a significant
number of cases when the UK feels it needs to step in and enforce
this; it is more that it is just part of the bigger picture of
good practice.
Chair: Thank you very much Mr Sprague,
Mr Parker and Mr Butcher for joining us this afternoon. Your evidence
has been very useful, and we will be glad to have the follow-up
material that we have requested.
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