11 Trade in products used for capital
punishment, torture etc
| (35795)
6083/14
COM(14) 1
| Draft Regulation amending Council Regulation (EC) No. 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
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| Legal base | Article 207 TFEU; co-decision: QMV
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| Documents originated | 14 January 2014
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| Deposited in Parliament | 10 February 2014
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| Department | Business, Innovation and Skills
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| Basis of consideration | EM of 20 February 2014
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| Previous Committee Report | None
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| Discussion in Council | See para 11.8 below
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
11.1 Council Regulation (EC) No. 1236/2005 lays down
EU rules governing trade with third countries in goods which could
be used for capital punishment, or for torture and other cruel,
degrading or inhuman treatment or punishment. More specifically,
it prohibits the export of goods[50]
(listed in Annex II of the Regulation) which have no practical
use other than for these purposes, whilst, in the case of goods
(listed in Annex III) which could be so used, but which
have other legitimate purposes, it stipulates that an authorisation
issued by a nominated competent authority in the Member State
of export is required. However, it adds that the competent authority
must consult any other such authority which has rejected an essentially
identical application within the previous three years; that any
such authorisation should not be granted if there are reasonable
grounds for believing that the goods in question might be used
for torture etc; and that any decision to dismiss (or annul) an
application should be notified to the Commission and other Member
States.
11.2 In 2011, a Commission Implementing Regulation
extended the controls to certain drugs (essentially barbiturate
anaesthetic agents), which were added to Annex III of Council
Regulation (EC) No. 1236/2005, in order to prevent their use for
capital punishment by means of lethal injection. However, after
a number of manufacturers and Member State competent authorities
had suggested that the system for controlling their export was
unnecessarily cumbersome, having regard to their legitimate uses
and the large number of transactions each year, the Commission
undertook a more general review of Council Regulation (EC) No.
1236/2005.
The current proposal
11.3 As a result, it has now put forward this proposal,
which would list these drugs in a new Annex (IIIA), and create
a Union General Export Authorisation (UGEA) — equivalent
to a UK Open General Export Licence — to provide a simplified
procedure for their export to destinations which have prohibited
capital punishment, and for repeat exports to specified end-users
in countries which have retained execution by lethal injection,
subject to the existence of contractual arrangements between the
supplier and recipient to prevent their diversion.
11.4 In addition, the proposal would make the following
amendments:
· the UGEA would also apply to all other
items currently listed in Annex III of Council Regulation (EC)
No. 1236/2005;
· the brokering[51]
of goods listed in Annex II would be prohibited, whilst controls
would be introduced on brokering and the provision of technical
assistance related to items in Annex III, where the broker or
provider of such assistance was aware, or "suspected"
that the items might be used for capital punishment or torture
in an overseas country;
· the Commission would be empowered to amend
the Annexes to Council Regulation (EC) No. 1236/2005 by means
of a delegated act, and there would be an "urgency procedure"
allowing such an amendment to enter into force without delay (rather
than after a two month silence, which is usual for such acts);
· there would be a new mechanism enabling
Member States to request the Commission to amend the Annexes to
the Regulation; and
· the definitions of "torture"
and of "other cruel, inhuman or degrading treatment or punishment"
would be amended to take account of recent case-law of the European
Court of Human Rights, and a number of new definitions would be
added to accommodate the other changes described above.
The Government's view
11.5 In his Explanatory Memorandum of 20 February
2014, the Minister of State for Business and Energy (Michael Fallon)
says that the Government supports robust controls on equipment
which might be used for internal repression, including capital
punishment or torture, and recalls that Regulation (EC) No. 1236/2005
was adopted during the last UK Presidency of the EU. He adds that
the UK maintains national controls on the brokering of equipment
whose only use is for capital punishment and on some equipment
used for torture; took the lead in applying national export controls
to drugs used in execution by lethal injection; and was instrumental
in the Regulation being amended to make these subject to export
controls across the EU. He also observes that it has since 2000
been the policy of successive Governments to deny export licences
for military or dual-use goods where it judges there to be a clear
risk that these might be used for internal repression. In general,
therefore, he says that the Government welcomes efforts to strengthen
the Regulation, provided they do not impose unnecessary burdens
on legitimate business.
11.6 More specifically, the Minister says that:
· the proposals to allow more flexible licensing
of items currently listed in Annex III of Regulation (EC) No.
1236/2005 are to be welcomed, adding that, when the UK adopted
a corresponding national control, it applied only to exports to
the United States, as the destination judged to present the greatest
risk of misuse, whereas the current application of these controls
to all destinations has been disproportionate;
· equally, the proposal to allow national
authorities to grant a General Authorisation for repeat exports
to specified end-users in countries which have retained execution
by lethal injection, subject to the existence of contractual arrangements
to prevent diversion, is sensible, as is the possibility of applying
such an Authorisation to all other items currently listed in Annex
III;
· the UK Export Control Order 2008 currently
defines certain capital punishment and torture goods as "Category
A" goods for the purposes of the brokering controls, and
prohibit (other than in very narrowly defined circumstances) any
UK person to arrange the supply of such goods from one overseas
country to another: whilst the Government welcomes efforts to
bring EU controls into line with existing UK controls, the scope
of the proposal is slightly narrower, in terms of the definition
of brokering, the range of goods concerned, and the fact that
it would apply to supply between non-EU countries rather than
between all overseas countries;
· as Regulation 1236/2005 covers an area
of exclusive EU competence, the UK will not be able to maintain
national controls in addition to the EU controls, unless specifically
authorised to do so under the amended Regulation (or if it is
able to justify them on UK public policy or public security grounds);
· the Government will therefore have to
decide whether to try and persuade the EU to adopt the same level
of controls as the UK, to seek a derogation allowing the UK to
maintain stricter controls, or to accept the slightly narrower
scope of the EU proposal: he suggests that the first two options
may not be negotiable, whilst the last could lead to criticism
that the UK's controls have somehow been "weakened",
even though an EU-wide control would be more effective in preventing
undesirable trade than a purely national control;
· there are currently no equivalent UK national
controls to those proposed on brokering and on the provision of
technical assistance related to items listed in Annex III and
the new Annex IIIA, where the broker or provider is aware or "suspected"
that the items might be used for capital punishment or torture
in an overseas country: he points out that these provisions are
modelled on the EU export control system for dual-use items in
Council Regulation (EC) No. 428/2009, and appear in principle
to strike a sensible balance, but the formulation of the legal
text does not match the stated intent of the new controls, and
the preamble to the new Regulation serves only to confuse matters
further, so that it will be necessary to seek clarification from
the Commission before the implications can be properly assessed;
· the UK accepts that there is an argument
for introducing an urgency procedure, but considers that this
should be deployed sparingly, and that there should be a high
threshold for its use (for example, if there was clear and compelling
evidence that a particular drug not currently listed in Annex
III to the Regulation was being sought by a country which practices
execution by lethal injection); and
· the proposal that Member States may ask
the Commission to amend the Annexes to the Regulation arises because
the Commission has no role in law enforcement or criminal matters,
and therefore does not have the necessary expertise to decide
whether or not equipment designed or marketed for law enforcement
may be misused for torture or other cruel, inhuman or degrading
treatment or punishment: he says that, whilst it is always possible
for Member States to ask the Commission to act, the existence
of a formal mechanism for such requests seems to be sensible.
11.7 The Minister says that an Impact Assessment
has not been prepared, as in practice there are very few licence
applications for items covered by the Regulation, and this proposal
is not expected to have a significant impact on business or the
Government. However, the Government will consider in due course
whether such an Assessment is necessary.
11.8 He also says that there is currently no information
on how long the legislative process will take, and that it is
not clear at this stage whether the Commission will try and force
this through before the European Parliament elections in May.
Conclusion
11.9 The principle of EU controls over exports
of the items covered by Council Regulation (EC) No. 1236/2005
is now well established, and the changes proposed by the Commission
appear on the whole to be logical and sensible, and to respond
to a number of practical concerns which have previously been expressed
about the operation of the measures. In view of this, we do not
consider that the proposal raises any major issues, particularly
as the Government has said that there are very few applications
for licences, and, although we think it right to draw it to the
attention of the House, we are content to clear it.
50 Such as gallows, electric chairs, gas chambers and
systems to administer lethal chemicals. Back
51
Defined as arranging the supply of goods between one non-EU country
and another. Back
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