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Lord Phillips of Sudbury: I am inclined to support the amendment. The Minister may tell us that the wording undermines the effectiveness of the licensing procedure. However, with regard to a criminal offence which might bear a sentence of imprisonment of up to 10 years, and where that criminality can be imposed by secondary legislation, it must be right in principle that there should be some intent.
Lord Sainsbury of Turville: The amendment seeks to provide a defence against charges of committing an offence in relation to an end-use type of control. In such cases the amendment seeks to provide a defence that the supplier did not know, and could not reasonably be expected to know, about the uses to which the item of assistance would be put. This is essentially a defence based on the level of reasonable knowledge about intended end-uses. The amendment is not required and is inappropriate.
Clause 6 of the Bill illustrates the supplementary powers necessary in relation to the order-making powers. It is for the orders themselves rather than the Bill to spell out both offences and any necessary defences. It would not be appropriate, therefore, nor indeed possible, to provide in the Bill for a defence in respect of offences to be created in secondary legislation but which of course are not created until that secondary legislation has been made.
However, perhaps I can reassure the noble Baroness and the noble Lord that appropriate defences would, of course, be available in respect of offences to be introduced in secondary legislation. We have already made available to Parliament dummy draft orders under the Bill which illustrate how we propose to use the powers in the Bill. The dummy draft orders and existing secondary legislation contain provisions about offences and penalties. It may be helpful to refer to that now.
Taking an example from existing controls, the Dual-Use Items (Export Control) Regulations 2000, which deal with enforcement and offences related to Community legislation, specify that offences arise only where the person concerned has been informed by Government, is aware or suspects that an item is or may be intended for use in connection with weapons of
mass destruction. In the case of "suspicion" the regulations further make clear that the person should make,
- "all reasonable enquiries as to their proposed use"—
- "and is satisfied that they will not be so used".
- "Any person knowingly concerned in the transfer of software or technology, or in the attempted transfer of software or technology, with intent to evade any prohibition or restriction . . . shall be guilty of an offence".
That makes it clear that knowledge and intent are required for an offence to be committed. I hope that it is therefore clear that the objective of the proposed amendment will be dealt with in secondary legislation. But for the reasons that I have mentioned, we cannot properly include in primary legislation a defence that relates to offences not created by that primary legislation.
I hope that the noble Baroness and the noble Lord will be reassured by what I have said and that the amendment will be withdrawn.
Baroness Miller of Hendon: I shall withdraw the amendment with the leave of the Committee, but I am not happy with the explanation. Although I understand what the Minister is saying—I shall read his remarks carefully—I nevertheless feel that it is not appropriate that such matters should be dealt with by secondary legislation. The matter should be clearly spelt out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury moved Amendment No. 25:
- Page 5, line 10, leave out "may"
The noble Lord said: In moving this amendment, I shall speak to Amendments Nos. 26 to 30, which refer to Clause 6, which, as Members of the Committee will recollect, gives the Government the power to make supplementary provisions with regard to licences granted under the first clauses of the Bill. Subsection (2) of Clause 6, to which the amendments relate, states that "an order may" provide yet further arrangements.
The purport of the six amendments is to require an order made under Clause 6(1) to apply to the Crown, leaving discretion with regard to the other provisions of Clause 6(2). We believe that the orders that may be promulgated under Clause 6 should apply to the Crown, not as a matter of discretion but compulsorily. There is no reason to exempt the Crown from the position of every other citizen whether corporate or individual.
It is notable that the Scott report recommended that the list of international organisations and Crown agencies exempted from export controls should be
abolished. It is also the case that the Quadripartite Select Committee in its report of May last year recommended that,
- "consideration is given to the desirability of ending the blanket exemption from controls of Government and its agencies as exporters of licensable goods and technology".
That is the consideration that we are giving the matter tonight. It is clear that the Select Committee was biased in favour of the amendments that are before this Committee. The Government are a major dealer in weaponry and defence equipment both to and from other governments. The amendments would ensure that the provisions that are to be applied under Clause 6 and the earlier clauses will apply to government as well. I beg to move.
Lord Judd: I hope that my noble friend the Minister will take seriously the amendment moved by the noble Lord, Lord Phillips. I imagine that my noble friend will argue that there is no need to control most of those exports because they involve providing essential equipment to our Armed Forces in connection with important international defence commitments such as peacekeeping. No one underestimates the significance of that. Does the Minister accept that that is only one aspect of the government transfers issue and that there are also a number of other aspects? They include, for example, the sales of Challenger tanks to Jordan and the largest-ever deal, the Al Yamamah deal, which was, after all, a government deal. I find it difficult to believe that in view of the logic of the Government's position, they do not feel that such arrangements should be open to the same scrutiny as any other arrangements.
9.45 p.m.
Lord Sainsbury of Turville: The reason why these provisions are included has perhaps been misunderstood. As I explain the situation, it should become clear that the problem that has been raised is rather different from the intention that lies behind the provisions.
Clause 6 sets out the various provisions that may be specified in orders that are made under the Bill. The amendments would provide that the matters that are specified in the orders should apply to the Crown. The substantive amendment appears to propose the replacement of "may" in line 10 with "shall". I shall focus on that amendment in responding. The other amendments are consequential on it.
The position is that controls on the export of most classes of goods fall within Community competence under the common commercial policy of the Treaty of Rome. As a limited exception to that, member states have the power to impose controls in respect of exports and transfers on defence items. Member states also have, in exceptional circumstances, the ability to impose controls for other significant reasons, such as public security. At the moment, our Community obligations are given effect under the European Communities Act 1972. By enabling the Crown to be bound in respect of EU obligations, Clause 6(2)(a)
reflects existing powers and, as the main dummy draft order illustrates, will allow us to consolidate current export control legislation made under both the 1939 Act and the European Communities Act. That consolidation is a step which we believe will be helpful to business. That is, if you like, the "technical" reason for Clause 6(2)(a).The Government's own exports tend to be those items of essential equipment that are used by our Armed Forces or in connection with important international collaborative defence projects. There will also be items that are exported for use for international development purposes, such as equipment used for mine clearance. It must be for the government of the day to carry out their various operations in pursuance of announced policy efficiently and effectively. Clearly, it makes no sense for the Government to be required to licence their own exports for those defence and other essential purposes. To impose such a requirement would create unnecessary bureaucracy and in some cases could hamper our ability to respond quickly. At the same time, the Government make information available in the annual reports, which gives Parliament the opportunity to scrutinise export decisions.
In view of that explanation and the fact that the matter relates to our treaty obligations, I invite the noble Lord to withdraw the amendment.
Lord Phillips of Sudbury: I am grateful to the Minister for that response. I shall deal with the only easy point first; that is, that the effectiveness of parliamentary scrutiny on these matters ex post facto is, I have to say, nigh on nil.
On the Minister's argument as a whole, I shall need to read his response carefully. He will perhaps accept that his answer was worthy of an advanced seminar in international law. I am not going to tread where others would not go, except to say—perhaps Members of the Committee will find this totally superfluous—that the nature of legislation these days is illustrated rather well by this provision. I make no criticism of the Minister or what he said, but the passage of legislation such as this is somewhat difficult when the issues are so contorted. I hope that he will allow me to come back to him at the Bill's next stage if I am dissatisfied. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 26 to 30 not moved.]
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