6Specific Provisions relating to existing EU Human Rights Protections for Export Controls - Arms Trade and the Torture Regulation
79.At present specific rules apply to ensure that certain exported goods, such as arms or items which could be used for repression, are not used to contribute to human rights violations. Many of these rules stem from EU obligations which will not bind the UK following Brexit. There is therefore some uncertainty as to the future UK rules and controls on the export of equipment that could be used for human rights violations.
80.Under section 3 of the European Union Withdrawal Act 2018, the Torture Regulation will continue to apply to the UK as retained EU legislation immediately following Brexit. Under the Export Control Act 2002, the EU Consolidated Criteria for Arms Exports76 will continue to be the standard applied for the period after Brexit, although this can be changed by an announcement of amended guidance. The FCO’s submission explains the situation and current intention but does not help to provide much reassurance that proper scrutiny and consideration will be given to any proposed changes in the future:
“The UK has a domestic legal basis for export controls in the form of the Export Control Act 2002. Our overall objective is to maintain the integrity of the export licensing system for the long term following the UK’s exit from the EU.
After the UK leaves the EU, the Consolidated EU and National Arms Export Licensing Criteria will remain in force, until such time as new or amended guidance is announced to Parliament. Any such new or amended guidance will be consistent with the UK’s obligations as a State Party to The Arms Trade Treaty, which requires an assessment, prior to export, of the potential that conventional weapons covered by the treaty could be used in the violation of international human rights law.
We examine every application rigorously on a case-by-case basis against the Consolidated EU and National Arms Export Licensing Criteria. We draw on all available information, including reports from NGOs, media and our overseas network. Risks relating to human rights abuses are a key part of our assessment. We do not export equipment where we assess there is a clear risk that it might be used for internal repression.
We will use the EU (Withdrawal) Bill to preserve EU export control regulations, and make subsequent amendments to relevant domestic legislation. In particular, the EU (Withdrawal) Bill will retain, as UK law, Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.
We will seek to maintain as much continuity as possible for the UK’s export licensing system following EU exit, and to maintain close cooperation with the EU in this area.”77
81.This provides some reassurance as to the standards to be retained in relation to arms export controls. It is important that exports from the UK are not used in human rights violations. But it is unclear what would happen if policy were to change. In particular it is unclear what the role of Parliament would be given the wide-ranging powers given to Government to change these rules, whether by Statutory Instrument (in relation to the Torture Regulation) or simple policy announcement (in relation to arms export controls–which include dual use items that could be used for repression and other human rights abuses). We note that, the Commons already has the Committees on Arms Export Controls (CAEC) which looks at specific issues relating to arms export controls and consists of four select committees meeting and working together: Defence Committee; Foreign Affairs Committee; International Development Committee; International Trade Committee. These four committees work together because each has an interest in arms exports as part of their responsibility to scrutinise their respective Government department.
82.However, we have some remaining concerns as to adequate export controls for other goods. As noted in Lord Ahmad’s letter to the Chair:
“Controls on export of goods usable for capital punishment or torture are currently contained in EU law (i.e. Council Regulation 1236/2005). These would become “retained EU law” under the EU (Withdrawal) Act 2018 in a No Deal Brexit. In regards to the legislative process through which changes would be made, there are powers in the Export Control Act 2002 which would allow the retained Regulation to be amended using secondary legislation.
Controls on export of military goods are set out in national law (the Export Control Order 2008, made under the Export Control Act 2002) and are unaffected by Brexit. Regarding the legislative process, any change to those controls would require secondary legislation amending the 2008 Order.”78
83.Those who submitted evidence were keen to ensure continued UK commitment to human rights protections in export controls post-Brexit. The submission from Amnesty International UK calls on the UK formally to align “to all existing EU systems that currently form part of the UK export controls” and suggested that the system for parliamentary oversight of arms exports, CAEC (the Committee on Arms Export Controls) should be made more effective and should include “a nominated member of JCHR given the centrality of human rights considerations to the regulatory framework”.79 We have some doubts as to whether the attendance of a member of JCHR will always be necessary. However, we note that the recent changes to Standing Orders allow members of one Committee to participate in proceedings of another so there is now welcome flexibility.
84.The UK should maintain adequate systems and procedures to prevent exports from the UK from being used in human rights violations and there should be adequate parliamentary oversight and involvement in those processes.
85.The Government should consult this Committee and CAEC before making any changes to the rules relating to international trade and human rights, including export controls on certain goods such as those currently flowing from Council Regulation (EC) No 1236/2004 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, and the Consolidated EU and National Arms Exports Licensing Criteria.
76 This is statutory guidance which the International Trade Secretary is required to give to Parliament under section 9 of the Export Control Act 2002.
Published: 6 March 2019