House of Commons - Scrutiny of Arms Exports (2012): UK Strategic Export Controls Annual Report 2010, Quarterly Reports for July to December 2010 and January to September 2011, the Government's Review of arms exports to the Middle East and North Africa, and control issues

Scrutiny of Arms Exports (2012): UK Strategic Export Controls Annual Report 2010, Quarterly Reports for July to December 2010 and January to September 2011, the Government's Review of arms exports to the Middle East and North Africa, and control issues - Business, Innovation and Skills Committee Contents

7 International arms control and co-operation

UK/US Defence Trade Cooperation Treaty

128. The Treaty on UK/US Defence Trade Cooperation aims to streamline defence export procedures between the two countries. The Treaty sets out a framework for arms trade and technology transfer between the UK and the US. The Government's Explanatory Memorandum accompanying the Treaty states:

The Treaty only covers defence articles listed on the United States Munitions List. It does not cover the export or transfer of defence articles for use by other nations, nor certain highly-sensitive technologies that will be specified in the implementing arrangements.[177]

Under the Treaty exports from the US to the UK will emulate the current practice for authorising UK defence exports to the US, that is, the majority will be undertaken through open, as opposed to individual, licensing arrangements. The existing export control system for the UK will remain in force together with the Treaty, and UK arms exports to the US under the Treaty will still need to meet the Government's export control criteria.[178]

129. The Treaty was initially signed in 2007 by the then-Prime Minister Tony Blair and then-US President George W Bush, and was ratified by the US Senate and House of Representatives on 29 September 2010, after a three-year delay by the United States. The Treaty was ratified by the UK in early 2008.

130. The Committees in their 2011 Report (HC686) recommended as follows:

We recommend the Government sets out in its response to the Report what specific steps it is taking to ensure that UK exporters take full advantage of the potential benefits of the Treaty on US/UK Defence Trade Cooperation. We further recommend that the Government sets out the respective roles and responsibilities of the British Embassy in Washington and the British Consulate-General in New York in obtaining the maximum benefit for UK industry from the Treaty.[179]

The Government in its Response replied:

The Government recognises that the Treaty, by strengthening the US and UK defence acquisition relationship and seeking to make defence and security trade between our countries simpler, has the potential to benefit both our Armed Forces and UK industry. The primary purpose of the Treaty is to improve the delivery of military capability to our Armed Forces by simplifying export licensing arrangements for eligible categories of equipment and information when these are destined for the end-use of either Government. As a consequence, the Treaty, once brought into force, should not only benefit UK companies exporting items to meet US Government requirements but, more importantly, UK firms undertaking work on behalf of Her Majesty's Government, directly or as sub-contractors to US companies, where this requires the access to US sourced equipment and information.

The UK Government, in close consultation with the US Administration and with UK industry through the Aerospace Defence Security (ADS) trade association, are currently working on the detailed implementation activities which need to be completed successfully before the Treaty can be brought into force which is planned in 2012. These include developing the detailed administrative processes and guidance, including those required to apply for membership of the Treaty Approved Community, assessing the application of the Treaty to joint US-UK programmes and UK projects and testing to ensure that the new arrangements are working effectively and to enable us to consider how and where the Treaty can best be applied to bring most value and benefit. It is essential that we ensure that the Treaty arrangements are operating effectively before the Treaty comes into force and we, and the US, plan to test all elements of the Treaty's operation, including exports to the US, by using a number of "pathfinder" projects. These will be existing acquisition projects selected by UK and US Governments in consultation with our industries. We are negotiating the selection of individual projects with the US before formally approaching industry and plan for the first pathfinder trials to begin in the summer.

The implementation activity includes those areas that are required to enable UK exports to be made to the US under the Treaty. Amongst these are the development of a Treaty-specific UK Open General Export Licence (OGEL) for use by UK members of the Approved Community, reviewing how UK company facilities can join the UK Approved Community when such a facility is solely conducting work on behalf of the US Government and working with the US to understand the changes they are making to US procurement regulations that are required to enable UK companies to bid for, and secure, US contracts under the Treaty. In addition, we will also be participating in outreach activities with industry including workshops and other events. Officials recently spoke at an Aerospace Defence Security (ADS) trade association seminar in May.

As stated above, the primary purpose of the Treaty is to improve the delivery of military capability to our Armed Forces. The British Embassy is supporting the UK through their relationships with the US Government (including State Department and Department of Defense). The Embassy is seeking to ensure, through these relationships, that the implementation of the Treaty simplifies export licensing arrangements for eligible categories of equipment and information. The Director-General of UKTI in the USA (within the British Consulate-General in New York) and the British Embassy in Washington are both seeking to further HMG's Prosperity Agenda. This is being taken forward by ensuring that UK industry has a level playing field to access US Government business and working to increase UK industry market access to the USA.

We will provide a further note on the Treaty to the Select Committees as implementation progresses.[180]

131. The Chairman of the Committees in his letter to the Foreign Secretary of 18 July 2011[181] put 2 further questions to the Government on behalf of the Committees to which the Foreign Secretary responded in his reply of 30 September 2011. The 2 questions and the Government's answers were as follows:

Committees' question: Will the Government provide the CAEC with the list of "pathfinder" projects to implement the Treaty on US/UK Defence Cooperation when agreed between the UK and US Governments?

Government answer: Pathfinder projects will be used to test the efficacy and appropriateness of the full range of national processes, practice, guidance and training, which have been developed in consultation with the US, and to test the application and utility of the Treaty ahead of full implementation. There are seven jointly agreed Pathfinder projects; five nominated by the UK and two by the US.

The UK Pathfinder projects are: Chinnok, Apache, RivetJoint (UK Air Seeker) and Bowman, with one 'Pathfinder' nomination from Industry (a sale to the US Navy by Aish Technologies Ltd) to test the bilateral nature of the Treaty by exporting equipment from the UK to the US. The US 'Pathfinder' projects are: F22 Raptor engines and V22 Osprey Tiltrotor. In addition, the clearance process required to enable facilities operated by the UK non-governmental entities to join the 'Approved Community' will also be tested. Aish Technologies Ltd, Rolls Royce Ltd and Wiltshire Ballistics will provide 'Pathfinder' facilities for the Approved Community process. Industrial participation in the Pathfinder process is key to ensuring that the UK MOD and US DoD industrial partners are similarly prepared for Treaty implementation. The UK MOD Implementation Team have worked with the Aerospace Defence Security Trade Association to ensure that Government plans for Treaty implementation are understood and that industry's views are taken into account.

Committees' question: By what date does the Government expect to provide the CAEC with its further note on the implementation of the Treaty on US/UK Defence Cooperation? It is hoped that this will be before the Committees start taking further evidence?

Government answer: The Pathfinders were formally notified to the Defence Suppliers Forum ahead of the 1 September start date for the testing period and were discussed at the National Defence Industrial Association's annual Quadrilateral (UK, Canada, US and Australia) conference on 12 September 2011. Pathfinder testing and Approved Community trials will conclude by November 2011, which will enable the UK and US Governments to determine whether the Treaty's processes are robust and effective. Upon completion of the Pathfinder testing and "Approved Community" trials we will provide a further note to the Committee.[182]

132. The Committees recommend that the Government in its Response to this Report:

a) states when it will be providing the further note to the Committees as to whether the Treaty processes are robust and effective following completion of the Pathfinder testing and Approved Community trials; and

b) sets out the latest position on the Government's development of a Treaty-specific UK Open General Export Licence (OGEL) for use by UK members of the Approved Community.

133. In Oral evidence on 23 January 2012, the Committees asked EGAD about the effectiveness of the Treaty. Brinley Salzman (EGAD) said that: "UK industry's viewpoint and US industry's viewpoint are both very critical of what has come out of it. We think that the treaty itself is a fantastic document. The problem is the implementation arrangements under the treaty, which underscore it and, to a major extent, undermine the treaty and the potential benefits that could have come out of it."[183] In Oral evidence on 7 February 2012, the Committees asked the BIS Secretary of State about both UK and US industry concerns with how the Treaty would work in practice and the dissatisfaction on both sides about how the Treaty would be implemented. Vince Cable replied that the Government regarded the agreement as positive for the UK. The Ministry of Defence (MoD) was holding a series of seminars with British companies to ensure that they understood the significance of the Treaty and how it would operate for the companies. Tom Smith (Head of the Export Control Organisation, BIS) said that the MoD was running a series of Pathfinder Projects to help UK companies. He pointed out that the specialist arrangements in the UK/US Defence Trade Cooperation Treaty suited some companies more than others. Mr Smith went on to say that the Government was working closely with the US Government on President Obama's broader export control reforms. These reforms would involve moving some products out of the scope of international trade in arms regulations into the US Department of Commerce scrutiny. He stated that the combination of these measures would lead to a better working relationship between the UK and US systems.[184]

134. On 21 July 2011, the Chairman of the Committees wrote to the Foreign Secretary following correspondence received from Caroline Lucas MP. In his letter the Chairman said:

I trust you will be able to assure me unequivocally that the US/UK Defence Trade Co-operation Treaty will not result in any reduction in the current disclosure both on the BIS and FCO websites and to the Committees on Arms Export Controls relating to exports of controlled goods from the UK to the US."[185]

The Foreign Secretary, William Hague, replied to the Chairman on 5 August 2011 as follows:

I can assure you that the Treaty will not lead to any changes in the level of disclosures about exports of controlled goods from the UK to the US on departmental websites or our regular information exchanges with the Committees on Arms Export Controls. Exports from the UK to the US under the Treaty will continue to be licensed and, as now, it is expected most such exports will be under Open General Export Licence (OGEL). The fact that we have committed to a Treaty-specific OGEL should only have minimal impact in this respect. The Department of Business, Innovation and Skills will of course continue to report on individual licences granted and to provide general information on OGELs in the same way and to the same extent that they do now, regardless of whether the exports or transfers are under the Treaty or not.

In response to the points raised by Caroline Lucas, the Government will continue to provide information to the Chair of the Committees on Arms Export Controls in a transparent and timely manner, allowing then to continue their vital role examining the UK's strategic export controls.[186]

135. The Committees recommend that the Government in its Response to this Report sets out in what precise ways, if any, the coming into effect of the UK/US Defence Trade Cooperation Treaty will reduce the UK Government's controls over arms exports from the UK to the US, and the transparency of such exports to Parliament and the public.

UK-France Defence and Security Co-operation Treaty

136. The Government's Explanatory Memorandum to the UK-France Defence and Security Co-operation Treaty, which was signed by the Prime Minister and the then French President on 2 November 2010, states that the Treaty:

provides an over-arching framework for defence and security consultation and co-operation, including for the long-term strengthening of operational co-operation between UK and French Armed Forces, sharing and pooling of material and equipment, building joint facilities, ensuring mutual access to each other's defence markets, and industrial and technological co-operation.

The Explanatory Memorandum explains that the Treaty provides "a legal framework for delivering the commitments made in the 2010 Strategic Defence and Security Review for the UK to create stronger strategic defence relationships with our main allies whose security interests and military capabilities are closest to our own."[187]

137. Article 8 of the Treaty, relating to "Transfer, Access to the Market and Export Licensing" states:

1. In implementing laws, regulations and any stated policies on the export of armament materials and technology, the Parties undertake to facilitate to the greatest extent possible the transfer of defence and security equipment and services between the Parties, consistent with their national licensing procedures.

2. Each Party undertakes not to hinder legitimate access to its markets and to its Government contracts in the field of defence and security.

3. The Parties agree to facilitate and promote the export of defence and security equipment jointly produced by French and United Kingdom entities to third parties, by agreement and within the framework of their respective national legislation.

4. The rights and obligations set out in paragraphs 1 to 3 above shall be subject to the European Union and other international rights and obligations of the Parties, and shall accordingly be given effect in a manner consistent with such rights and obligations.[188]

138. EGAD's submission said that discussions had been held to determine how defence trade and co-operation could be further expanded upon. The discussions were continuing within the context of the EU's own proposals to make intra-community transfers of defence and security goods less "bureaucratically-burdensome". It said that it "fully support[ed]" these efforts to reduce bureaucracy with France and other bi-lateral countries who are deemed not to be destinations of concern and also to "have in place effective national export control systems and procedures to prevent potential diversion to undesirable third parties elsewhere."[189] When we asked EGAD about how the discussions were progressing, Brinley Salzman told us that there had been a number of meetings and video conference calls between British and French parties to flesh out the implementation plans for the Treaty. A "small gathering of experts from both sides" had taken place in Paris on 17 October 2011 to look at the issues. EGAD had briefed the French on UK export controls and how they worked, and the French had briefed EGAD on French export controls and how those worked. Working Groups had then been formed to examine various aspects of what had been discussed. Proposals for possible changes to the practices of both sides had emanated from these workshops. It was planned that a further meeting would take place in London in April 2012 to discuss pursuing "potential easing of the bureaucratic situation with regard to Anglo-French defence trade."[190]

139. The Committees recommend that the Government in its Response to this Report sets out in what precise ways, if any, the coming into effect of the UK/France Defence and Security Co-operation Treaty will reduce the UK Government's controls over arms exports from the UK to France, and the transparency of such exports to Parliament and the public.

The Intra-Community Transfer (ICT) Directive on arms transfers within the EU

140. In 2009 the Commission of the European Union adopted Directive 2009/43/EC. The Directive's aims are to simplifying the terms and conditions of intra-Community transfers of defence-related products. The Directive promises to facilitate significantly certain types of intra-Community transfers of products listed in the Common Military List of the European Union. The arms trade within the EU is currently subject to 27 national licensing regimes, which diverge widely. Member States have acknowledged that these disparities may impede the movement of defence-related products and distort competition within the internal market. The ICT Directive requires Member States to facilitate intra-Community transfers of items listed in the Common Military List of the European Union by introducing systems of general and global licences. Member States may even exempt entirely certain intra-Community transfers from the licence requirement.[191] The Directive is due to come into force in all EU countries in June 2012.

141. EGAD is disappointed at the slow progress that has been made towards the adoption of the new intra-Community transfer arrangements. It remains convinced that progress could have been faster. It pointed out the "considerable potential benefits that the ICT presents in significantly reduced nugatory bureaucracy for companies across the EU." It believes adoption of the Directive will speed up the European supply chains for UK companies.[192] Brinley Salzman said EGAD was "very concerned". He told us that:

We should have been in the forefront of trying to implement the intra-Community directive as speedily as possible, but then, I believe, the Export Control Organisation identified the fact that they hit a few potholes on route, so we are not actually in the forefront. We are still up with the leading group, but we are not in the forefront of introducing these new controls.

He informed us that the ICT Directive was due to be implemented on 30 June 2012. He was hopeful that the UK would be able to catch up with the other countries and that the UK would be in the forefront of implementing the directive on time. Some of the proposals had caused problems to the industry, especially with regard to technical assistance. He concluded: "There is going to be a measure of control over technical assistance in the military sector, which of course, under UK national regulations, we do not have at the moment, for the most part."[193]

142. When the Committees asked, at the Oral Evidence session with the BIS Secretary of State, whether the Government was disappointed with the rate of implementation of the EU Directive on intra-Community transfers Tom Smith, Head of the Export Control Organisation within the BIS, replied that the UK and others in Europe were "well on course" to implement the Directive by the deadline of June. He said it was important that the implementation was done correctly. He was confident as the Directive was "very largely modelled on UK practice" it would not require major changes to UK export controls. Nevertheless, there were some issues, such as the regulation of technical assistance, on which the Government wanted to consult "very carefully" with industry to ensure that the Government was "not unwittingly creating unnecessary burdens."[194]

143. The Committees recommend that the Government in its Response to this Report states precisely what legislative and procedural changes the Government will be making to its arms export controls in order to implement and comply with the EU Directive on Intra-Community Transfers of defence-related products. The CAEC further recommends that the Government monitors compliance with the Directive by other EU Member States and reports back to the Committees on any breaches of the EU Code of Conduct on Arms Exports as a result of this Directive of which it becomes aware.

144. Finally, the Committees recommend that the Government in its Response to this Report sets out what precise ways, if any, the coming into effect of the EU Intra-Community Directive will reduce the UK Government's controls over arms exports from the UK to EU Member States, and the transparency of such exports to Parliament and the public.

Cluster Munitions

145. Cluster munitions are canisters that contain a number of smaller explosive bomblets or sub-munitions. When fired by artillery, or dropped by aircraft, the canister spreads the bomblets over a wide area. They are commonly used against soft targets such as troops, trucks and lightly armoured vehicles, or as area denial weapons to prevent the enemy from operating freely.[195] Those that fail to explode constitute a potentially lethal danger to civilians—men, women and children—in the areas where cluster munitions have been used.

146. The Convention on Cluster Munitions prohibits all use, stockpiling, production and transfer of cluster munitions. Separate articles in the Convention concern assistance to victims, clearance of contaminated areas and destruction of stockpiles. The Convention was adopted in Dublin by 107 states on 30 May 2008 and signed on 3 December the same year. By the end of 2011, less than two years after coming into force, the Convention on Cluster Munitions already had 111 signatory states.[196]

147. On 25 March 2010 Royal Assent was received for the Cluster Munitions (Prohibitions) Act. The main purpose of the Act was to create criminal offences in order to enforce the prohibitions set out in Article 1 of the Convention on Cluster Munitions which was signed by the then Foreign Secretary in Oslo on 3 December 2008. Article 1 of the Convention prohibits States Parties from using, developing, producing, otherwise acquiring, stockpiling, retaining or transferring cluster munitions; and from assisting, encouraging or inducing anyone else to engage in these prohibited activities. The Article 1 prohibitions also apply to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft. Criminalising these prohibited activities is necessary because Article 9 of the Convention stipulates that: "Each State Party shall take all appropriate legal, administrative and other measures to implement this Convention, including the imposition of penal sanctions to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control."[197]

148. Among the countries that have not signed the Convention is the United States and it has recently pressed for a Protocol (Protocol 6) to be added to the Convention that would have provided legal cover for the use of cluster munitions. The new Protocol would have permitted the use of cluster munitions manufactured after 1980 and with a failure rate of less than 1%. The US was reportedly supported by other cluster bomb manufacturers, including Russia, China, Israel, India and Pakistan.[198]

149. In his Adjournment debate in the House of Commons on 9 November 2011 Martin Caton MP said: "There are three possible outcomes: adoption of the draft protocol, ending negotiations with no result, or the adoption of a political agreement that is not legally binding but allows interim steps." He continued: "The draft protocol is not compatible or complementary with the Convention on cluster munitions. The latter bans these weapons; the former allows for their use, production and transfer." Martin Caton went on to say that:

The draft protocol contradicts existing international humanitarian law and is not the best way to engage with existing states that have stockpiles of cluster munitions [...] It would be the first time in history that international humanitarian law has moved backwards.[199]

150. In his reply the Minister for Europe, David Lidington, said that "the UK and the Government remain fully committed to the objective of ridding the world entirely of cluster munitions" and that "the Government are fully committed to seeking a global ban on cluster munitions. That is a Government priority, and we continue to promote the universalisation of the CCM [Convention on Cluster Munitions] during all relevant bilateral meetings, as well as in multilateral forums." He continued: "The UK remains fully committed to the convention on cluster munitions and to a world free of cluster munitions. That is the standard we shall adhere to, that all states should aspire to and that we will continue to promote."[200]

151. At the conclusion of the 4^th Review Conference of the Convention on Cluster Munitions, held in Geneva from 14-25 November 2011, it was reported that the attempt by the United States and other cluster bomb manufacturers, including Russia, China, Israel, India and Pakistan, to secure agreement to Protocol 6, which would have weakened the existing Convention, had failed.[201] The UK was part of a coalition of countries that defeated the US Protocol.[202]

152. In the Oral evidence session with the UK Working Group on 23 January 2012, Martin Butcher (Oxfam) said that the NGOs were "very pleased that the Government stood up strongly for the cluster munitions ban and for the principle that these weapons should not be used." They were also very pleased that the Government had promoted the cluster munitions Convention to other members of the Commonwealth at the Commonwealth Heads of Government meeting held in Perth, Western Australia, from 28 to 30 October 2011.[203]

153. In the Oral evidence session with the Ministers on 7 February 2012 the Foreign Secretary confirmed that the UK Government had resisted the attempt of the USA and other countries to insert a weakening Protocol into the Convention. William Hague said:

Together with the vast majority of states, we engaged in the discussion aiming for a draft protocol 6, which would be complimentary to the convention and not undercut it or provide a permanent lesser commitment, with significant and demonstrable humanitarian benefit. We had the final negotiation in December, which failed to achieve consensus, so we have to keep working on it. We want to continue to take all possible opportunities to encourage universal adherence to the convention. It was disappointing that there was not sufficient consensus in December.[204]

The Foreign Secretary went on to say:

Of course it was debatable whether we should go for or settle for something that fell short of that but could be agreed, or whether we should keep arguing for the gold standard. We thought about that long and hard, and decided that the position of the UK should remain that we wanted to go for the gold standard.[205]

154. In its written submission UKWG raised the issue UK-based financial institutions indirectly financing, and investing in, companies that manufacture cluster munitions. When in the Oral evidence session on 23 January 2012 the Committees asked the UKWG about their concerns Oliver Sprague (Amnesty UK) said:

When the Cluster Munitions (Prohibitions) Bill was going through Parliament last year, the Opposition—now the Government—introduced a specific amendment in the Lords to put indirect finance into the Bill. They withdrew that amendment, I assume because they were satisfied with the previous Government's assertion that it would work with industry, with civil society and with the Government to develop a code of conduct or robust guidelines aimed at ending indirect finance, with a view to legislating if that process was not successful.

From my discussions with a number of high street banks and financiers who are caught up in this loophole, they are looking to the Government to start that process. It is my understanding that the Government have decided, for whatever reason, not to pursue that process. I think it would be very helpful if they were to do so.[206]

155. The Committees recommend that the Government in its Response to this Report sets out what steps it will take in relation to UK-based financial institutions who may be financing, directly or indirectly, or investing in manufacturers of cluster munitions. The Committees conclude that the Government's decision to resist attempts to weaken the Convention on Cluster Munitions with draft Protocol 6 was welcome. The Committees further recommend that the Government continues to strive strenuously for, as the Minister for Europe David Lidington has stated, "a world free of cluster munitions."

Arms Trade Treaty (ATT)

THE NEGOTIATION PROCESS

156. The process of the current negotiations, which are UN-based, on a legally binding Arms Trade Treaty (ATT) began in 1997 following the call for a code of conduct on international arms transfers by a group of Nobel Peace Laureates. This was followed in 2003 by a campaign launched by NGOs to win support for the idea of an ATT. In 2004 the then Government explicitly backed the ATT. In 2006 it sponsored the UN General Assembly Resolution calling for the establishment of a group of governmental experts to examine the feasibility, scope and parameters of an ATT. The UN General Assembly passed Resolution 64/48 in December 2009, which mandated formal negotiation of an ATT by 2012.[207] If an Arms Trade Treaty is successfully concluded it will the first time the trade in the generality of conventional weapons worldwide has become subject to an international treaty.

157. Preparatory Committee (PrepCom) meetings have taken place in New York in July 2010, March 2011, July 2011 and February 2012. These were seen as a positive start to the negotiations. Following initial discussions between UN Member States, the Chair of the process released a series of papers on Treaty Elements, Principles and Goals and Objectives. Further discussion papers on Scope, Parameters and Implementation/Application were added. These papers formed the basis of negotiations moving forward.[208] The key output from the July 2011 PrepCom was an informal Chair's Draft paper, which included many of the essential elements of a humanitarian and human-rights-focused ATT. The most recent Preparatory Committee meeting took place in New York between 13 and 17 February 2012 and the final UN Conference will take place between 2 and 27 July 2012.[209]

158. Following the conclusion of the Fourth PrepCom in February 2012 the Deputy Prime Minister, Nick Clegg, said in a newspaper article:

Internationally, we'll lead the charge for a robust, legally-binding treaty, covering all conventional weapons. Not only rockets and tanks, but also the landmines and AK-47s that cause so much bloodshed. We'll press states who sign up to block sales that fuel conflict or fail to meet the treaty's obligations on human rights. And we want states to demonstrate they're meeting their commitments.[210]

THE UK GOVERNMENT'S ROLE AND POLICY

159. The Committees' conclusions and recommendations on the Arms Trade Treaty in its 2011 Report (HC686) and the Government's Response (Cm 8079) were as follows:

Committees' recommendation: We conclude that the Government's statement that it is fully committed to securing a robust and effective Arms Trade Treaty is to be welcomed. We look to the Government to deliver on its commitment.[211]

Government response: The Government is committed to securing an effective, legally binding international Arms Trade Treaty. The UK continues to play a leading role in the UN process on the Arms Trade Treaty to this end.[212]

Committees' recommendation: We conclude that the Government seems to have adopted a different policy from its predecessor; appearing to be prepared to weaken the Arms Trade Treaty in order to try to ensure that key arms exporting countries become signatories. We recommend that the Government continues to try to achieve the strongest possible Treaty, including exports of ammunition, with the maximum number of key countries including the United States, as signatories, but should not adopt a strict consensus or lowest common denominator approach which is likely to result in an Arms Trade Treaty being ineffectual.[213]

Government response: The Government is [sic] not weakened its approach. It is committed to achieving the strongest possible Treaty, which will need to be carefully balanced with the need for an Arms Trade Treaty to have the widest participation of states necessary for it to be truly effective. The Government remains committed to achieving an Arms Trade Treaty with the broadest possible scope, including ammunition, and will not sign up to a weak or ineffective Treaty.[214]

Committees' recommendation: We further recommend that the Government, in its response to this report, sets out its policy on including anti-corruption provisions in the Arms Trade Treaty with details of the provisions it would wish to see incorporated.[215]

Government response: The Government is supportive of an Arms Trade Treaty addressing the issue of corruption. There are a number of ways this could be achieved; through a stand-alone parameter, such as diversion, or through implementation mechanisms. The Government is still considering the most effective way this may be achieved through the Treaty.[216]

160. In his letter of 18 July 2011, the Chairman put 3 further questions to the Foreign Secretary on behalf of the Committees which the Foreign Secretary answered with his letter of 30 September 2011. The questions and answers were as follows:

Committees' question: In what specific ways is the UK continuing to play a leading role in the UN process on the Arms Trade Treaty so that an effective, legally binding international Treaty is secured?[217]

Government answer: The UK has maintained its leading international position on an Arms Trade Treaty (ATT) in a number of ways; including bilateral outreach, active engagement in the Preparatory Committee meetings and through proactive multilateral interaction with the P5 and the EU. Significant funding for ATT related project has also been provided, covering areas such as capacity building in developing states and research into technical aspects of the Treaty. The UK will continue to play a leading role as efforts intensify ahead of the crucial Negotiating Conference in 2012.[218]

Committees' question: Which of the other Permanent Members of the UN Security Council - namely China, France, Russia and the US - are, like the UK, also committed to achieving the strongest possible Arms Trade Treaty with the broadest possible scope, including ammunition?[219]

Government answer: The recent Preparatory Committee meeting in July saw the first joint P5 statement in support of the UN process on ATT. France and the US are firmly committed to securing a strong ATT, covering all conventional weapons. However, the US still has concerns about the inclusion of ammunition in an ATT's scope. Russia and China still have some significant concerns about an Arms Trade Treaty, and have different views on what should constitute the Treaty's final scope.[220]

Committees' question: Will the Government provide a further note to the Committees on what it considers would be the most effective way in which the Arms Trade Treaty could address the issue of corruption? It is hoped that this will be before the Committees start taking further evidence.[221]

Government answer: The Government is still considering the most effective way of addressing the issue of corruption in the context of an ATT. It may be that this could be achieved most effectively through the Treaty's implementation mechanisms, by introducing a requirement for signatories to take necessary measures to combat corruption in relation to arms transfers covered by an ATT. However, the Government remains open to other suggestions regarding how an ATT could address this issue effectively.[222]

161. The Committees received significant evidence of insufficient continuity of leadership at official level in the FCO on the Arms Trade Treaty following the change of Government in the UK in 2010. The UK Working Group on Arms (UKWG) told the Committees that: "Since 2006, the UK has been widely perceived as the lead government on this Treaty process, which has the potential for significant positive humanitarian and human-rights impact. However, UK profile and activity has significantly reduced in recent months, with potentially negative results in the final Treaty..." It stated that, in this vital stage in the run-up to final negotiations, the resources devoted and priority accorded to the ATT in the FCO have been "significantly reduced". UKWG has received feedback from "other supportive States including UK allies" that their impression is that the UK has "rolled back" in its leadership and activity on the ATT.[223] In the Oral evidence session on 23 January 2012 Martin Butcher (Oxfam GB) said:

[...] from the public pronouncements of the Government, you would not necessarily know that there has been a roll back. The public statements that are made are good statements, but behind the scenes there has definitely been a decrease in activity.[224]

162. In the Oral evidence with the Foreign Secretary, on 7 February 2012, the following exchange took place:

Q147 Mike Gapes: Who is in charge now on the arms trade treaty?

Mr Hague: Sarah can describe. We are restructuring the counter-proliferation department to increase the senior management resource working on the arms trade treaty, and on export control issues more generally. So there is not going to be a shortage of senior staff. Sarah, do you want to describe these personnel changes?

Sarah MacIntosh: Jill Morris—as you know—the former head of the counter-proliferation department has moved to eurozone work temporarily. That job has been backfilled with two officials: one more senior, Peter Hayes, the former ambassador in Sri Lanka, and Martin Hill, the deputy high commissioner in Ottawa.[225]

Q148 Mike Gapes: Is that up until the conference in July or is that just for the interim?

Sarah MacIntosh: That is an interim arrangement that is in place now. [...] The continuity throughout has been provided by me as the director, by Dave Hall, as the deputy head of the counter-proliferation department with responsibility for both those two issues and by Ambassador Adamson who has replaced Ambassador Duncan at the conference on disarmament.[226]

Q149 Mike Gapes: Do you agree—perhaps the Foreign Secretary could comment—with the perception that, just at the key moment, the week before you have this meeting coming up, there is not a permanent person there and there is no continuity therefore? [...]

Mr Hague: We have a lot of senior people dealing with this, and are upgrading this in the way that Sarah describes. I cannot promise you that we never move around in the Foreign Office, but this is going to receive a great deal of senior management time and attention, and ministerial time and attention. I can assure you that we are very strongly committed to this [...].[227]

163. On the content of the Treaty the Foreign Secretary told the Committees:

We are very firmly committed to securing a robust, effective and legally binding Arms Trade Treaty. The last Government did a good job on this. I will regularly say that, and I think there is strong cross-party agreement on that. We are aiming for a treaty that covers all conventional weapons, including small arms, light weapons, and ammunition.[228]

164. In an impressively forthright and detailed speech on the Arms Trade Treaty on 17 May 2012 the Minister of State for International Development, Alan Duncan, said: "To be effective and worthwhile the Treaty must be broad in scope, covering all elements from fighter jets to ammunition. Small arms and light weapons must be in the scope of the Treaty; if they are not, the opportunity to regulate a major contributor to conflict and suffering will have been missed. The UK, working hand in hand with most of the world's developing nations, will push to ensure small arms and light weapons are in the scope of the Treaty. Leaving them out would be an act of negligence." Alan Duncan went on to say that he would "push for the Arms Trade Treaty to address the issues of corruption, bribery and the lack of transparency."[229]

165. The Committees conclude that the Government has put at risk the UK's previous leading role in the drafting and negotiation of the Arms Trade Treaty by failing to maintain continuity of FCO staff at a senior level with this responsibility. The Committees also conclude that the Government's commitment to achieving an Arms Trade Treaty with the broadest possible scope, including ammunition, is welcome. The Committees further conclude that the Government's statement that it is supportive of an Arms Trade Treaty addressing the issue of corruption is welcome, though in stark contrast to the Government's refusal to accept the Committee's recommendation that the EU Common Position on arms exports should also include the issue of corruption (see paragraph 122). The Committees recommend that the Government deploys the staffing resources required at a sufficiently senior level, necessary to achieve a comprehensive and effective Arms Trade Treaty.

Sub-strategic and tactical nuclear weapons

166. On 30 January 2012 the Chairman of the Committees, Sir John Stanley, wrote to the Foreign Secretary, William Hague, asking whether the UK's strategic deterrent, Trident, had a sub-strategic capability and, if so, whether this would be consistent with the terms of the 1987 Intermediate-range Nuclear Forces Treaty[230] (INF) agreed between the USA and the then Soviet Union. The Foreign Secretary's reply of 20 February 2012 is reproduced in full below:

Thank you for your letter of 30 January in which you posed questions relating to the 'sub-strategic' capability of Trident.

The term 'sub-strategic' as it pertains to nuclear weapons has been used in NATO since the 1980s to refer to intermediate and short-range nuclear weapons. Between 1966 and 1998 the UK fulfilled this role principally through the WE177 air-launched bomb. Other systems included nuclear weapons aboard Royal Navy surface ships. These have now all been withdrawn, (the last WE177 was decommissioned in March 1998), and the Trident-based weapons system is now the UK's only nuclear weapons system.

Since the Trident system came into service, we have had some flexibility in the scale of any use of our nuclear deterrent. This flexibility stems from an ability to vary the number of missiles and warheads which might be used and the ability to employ a reduced yield from our nuclear warhead. We plan to retain this since having a degree of flexibility in the potential scale of its use makes our deterrent more credible against the range of nuclear threats we may face in the future.

What has changed is the way in which we describe this capability and this is where we currently differ slightly from NATO terminology. Since 2007 the British Government has ceased to refer to a sub-strategic capability in relation to Trident. This is for the simple reason that we believe any use of our deterrent would be strategic in intent and in effect. Since the British Government no longer uses the phrase 'sub-strategic' to describe this capability and there exists no internationally agreed definition of what comprises a sub-strategic nuclear capability, the British Government ascribes no specific range to the term 'sub-strategic'.

As regards your final question, we do not consider that any of the capabilities of Trident represent a potential breach to the terms of the intermediate-range nuclear forces Treaty (INF).[231]

167. The 1987 INF Treaty was the first nuclear arms control Treaty actually to eliminate certain categories of nuclear weapons, rather than to set numerical ceilings. Both the United States and the Soviet Union undertook to eliminate all their nuclear ballistic missiles with ranges between 625 and 3,500 miles by June 1 1991, and all missiles with ranges between 300 and 625 miles within 18 months. The remaining short-range or tactical nuclear weapons believed to be held by the US and Russia today are quoted as numbering in the order of 500 by the US and roughly 2,000 by Russia. Of the approximately 500 US tactical nuclear weapons, around 200 are deployed in five European NATO countries— Belgium, Germany, Italy, the Netherlands and Turkey.[232]

168. The Committees recommend that the Government sets out in its Response whether it wishes to see any change in NATO's policy of deploying tactical nuclear weapons in Europe, and whether it is taking any steps to facilitate multilateral reductions in US and Russian tactical nuclear weapons.

Fissile Material Cut-Off Treaty

169. The control of fissile material—highly enriched uranium and plutonium—is a key element in countering nuclear proliferation. In 1993 the UN General Assembly passed a Consensus Resolution which:

i. Welcomed the significant progress in reducing nuclear-weapon arsenals as evidenced by the substantive bilateral agreements between the Russian Federation and the USA and their respective unilateral undertakings regarding the disposition of fissile material;

ii. Welcomed also the initiative of the USA concerning a multilateral, internationally and effectively verifiable treaty on the prohibition of the production of fissile material for the nuclear weapons or other nuclear explosive devices;

iii. Welcomed further the decision taken by the CD [Conference on Disarmament] on 10 August 1993 to give its Ad Hoc Committee on a Nuclear Test Ban a mandate to negotiate a universal and internationally and effectively verifiable comprehensive nuclear test ban treaty, and fully endorsing the contents of that decision;

iv. Convinced that a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices would be a significant contribution to nuclear non-proliferation in all its aspects,

Recommended the negotiation in the most appropriate international forum of a non-discriminatory multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices;
Requested the IAEA [International Atomic Energy Authority] to provide assistance for examination of verification arrangements for such a treaty as required;
Called upon all states to demonstrate their commitment to the objectives of a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices;
Decided to include in the provisional agenda of its forty-ninth session an item entitled "Prohibition of the production of fissile material for nuclear weapons or other nuclear explosive devices."[233]

170. There are currently nine countries with nuclear weapons, China, France, Russia, United Kingdom, United States of America (collectively known as the P5) together with India, Israel, North Korea and Pakistan.[234] The Fissile Material Cut-off Treaty (FMCT) is a proposed international treaty to prohibit the further production of fissile material for nuclear weapons or other explosive devices. In 1946 the United Nations Atomic Energy Agency produced a report to the UN Security Council recommending the prohibiting national manufacturing and possession of fissile materials. In 1957, the UN General Assembly adopted a Resolution to ban their production for weapons and in 1993 it called for the negotiation of a Treaty in the Consensus Resolution described above.

171. In 1995 the Conference on Disarmament adopted the Shannon Mandate (named after Canadian Ambassador Gerald Shannon) to negotiate a non-discriminatory, multilateral and internationally effective verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices.[235] The use of the word "cut-off" (i.e. preventing future production) has raised the question as to how the Treaty would also cover existing stocks of fissile material. The primary debate that surfaced during the Shannon discussions centred on the inclusion of rules that would cover both existing stockpiles and future production of fissile material.[236] Pakistan has been the only country blocking the start of negotiations for more than three years because of a 2008 agreement by the world's key nuclear technology suppliers to lift long-standing restrictions on nuclear trade with India. Pakistan has maintained that a fissile material ban must cover existing stocks of fissile material instead of halting future production.[237]

172. The Committees recommend that the Government in its Response to this Report sets out what policies it is pursuing to break the deadlock at the Conference on Disarmament in Geneva over the drafting of a Fissile Material Cut-off Treaty and whether it supports the transfer of responsibility for the drafting of this Treaty to the United Nations in New York.

The National Counter-Proliferation Strategy for 2012-2015

173. The FCO Minister for Counter Proliferation, Alistair Burt, wrote to the Chairman of the Committees, Sir John Stanley on 21 March 2012 on the Government's National Counter Proliferation Strategy for 2012-15, and attached the public version of the strategy. The Minister's letter and the public version of the strategy can be found in the evidence to this Report in Annex 12.

174. The Committees recommend that the Government in its Response to this Report:

a) details the conditions that the Government considers need to be fulfilled to ensure a meaningful outcome to a conference on a Middle East Weapons of Mass Destruction (WMD) Free Zone;

b) sets out what precise steps the Government is taking to establish a verification regime for the Biological and Toxin Weapons Convention;

c) details the Government's planned expenditure, and on what projects, under the G8 Global Partnership delivering chemical, biological, radiological and nuclear (CBRN) security improvements on the ground;

d) details the specific provisions in existing obligations and export control regimes which the Government considers needs to have their enforcement strengthened; and

e) details any areas in which the Government considers that the UK's domestic security practices and export controls need to be strengthened.

177 Foreign and Commonwealth Office, Explanatory Memorandum on the UK/US Defence Trade Cooperation Treaty, September 2007, para 5 Back

178 Defence Committee, Third Report of Session 2007-08, UK/US Defence Trade Cooperation Treaty, HC 107, para48 Back

179 CAEC, First Joint Report of Session 2010-12, Scrutiny of Arms Export Controls (2011): UK Strategic Export Controls Annual Report 2009, Quarterly reports for 2010, licensing policy and review of export control legislation, HC686, para 23 Back

180 Government response to CAEC, First Joint Report of Session 2010-12, Scrutiny of Arms Export Controls (2011): UK Strategic Export Controls Annual Report 2009, Quarterly reports for 2010, licensing policy and review of export control legislation, Cm 8079, pp 5-6 Back

181 Ev 63- Letter to the Foreign Secretary dated 18 July 2011. Back

182 Ev 67 - Letter from the Foreign Secretary dated 30 September 2011, Annex A Back

183 Q 52 Back

184 Q 89 Back

185 Ev 65 - Letter from Chairman to Foreign Secretary dated 21 July 2011 Back

186 Ev 66 - Letter from the Foreign Secretary dated 5 August 2011 Back

187 FCO, Explanatory Memorandum on the UK-France Defence and Security Co-operation Treaty, page 1 Back