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Lord Sainsbury of Turville moved Amendment No. 31:
- Page 5, line 19, after second "different" insert "cases and different".
The noble Lord said: This amendment consists of a technical drafting change, which I hope Members of the Committee will agree raises no new issues of policy. At present, Clause 6(2)(e) illustrates that orders made under Clauses 1 to 4—that is, orders imposing export, technology transfer, technical assistance or trade controls—may make different provision for different
circumstances. For example, orders could set different restrictions on exports to embargoed and non-embargoed destinations.The proposed amendment makes clear that control orders can also make different provision for different cases. An example of such a scenario would be to make an exception to an order imposing an arms embargo in order to allow equipment to be supplied to peacekeeping forces or to allow vintage arms or aircraft to be exported to museums. Clearly, that is a subject dear to some people's hearts. In view of that explanation, I hope that Members of the Committee will agree that the amendment is necessary and that they will feel able to support it.
On Question, amendment agreed to.
Baroness Miller of Hendon moved Amendment No. 32:
- Page 5, line 19, at end insert—
The noble Baroness said: This amendment is intended to deal with an omission from the Bill. The licensing procedure that will be employed will undoubtedly include some right of applicants to appeal against a refusal of a licence or the terms that it contains. Such appeal will be internally within the department but will be dealt with by an official who is higher up the ladder than the person who dealt with it in the first instance.
I do not believe that that can simply be the end of the matter. An aggrieved applicant must have the right of appeal to the courts as a last resort in appropriate circumstances. An application for a judicial review cannot be launched lightly. In recent years, since this process has become more frequent, although it is still very uncommon, it is circumscribed by stringent rules of the court. The making of such an order is even rarer because of the strict criteria which the courts apply before granting one.
If only on the grounds of the substantial costs involved, it is impossible that the amendment would unleash a flurry of litigation. That is especially the case as only a small number of licences are refused—probably because applicants have more sense than to make hopeless applications in the first place.
The Bill, if enacted, would give the Secretary of State very wide powers to make orders and amend them in areas of which Parliament is still not fully informed because at present a fundamental part of the legislation, in the form of dummy orders, is still out for consultation.
The right to apply for a judicial review is well established in law. But we do not have a written constitution binding on the Government. The amendment seeks to ensure that the wide powers given to the Secretary of State to rule by statutory order will not be used by him to deprive anyone of a right which
Lord Sainsbury of Turville: The amendment seeks to include in the Bill a provision relating to the right to apply for judicial review to the High Court where a decision is made not to grant a licence or where any conditions have been imposed on a licence.
In this case, I do not believe that the amendment would add anything to the Bill because it is not required. The key point concerning the amendment is that it would include in the Bill a provision that is unnecessary. Although now codified in Section 31 of the Supreme Court Act 1981, judicial review is a common law remedy. It may be used by those with a "sufficient interest" to challenge the exercise or non-exercise of powers by a public body, which includes the Secretary of State, on grounds of illegality, irrationality or procedural impropriety.
Unless specifically disapplied by statute—the Bill does not include any such provision—a claim may be brought by judicial review against any decision by the Secretary of State either to grant or not to grant a licence or to impose conditions upon the award of a licence.
Indeed it may reassure the Committee to know that to include in the Bill, or indeed an order made under it, a provision that ousted a person's right to apply for judicial review in relation to decisions taken by the Secretary of State under this Bill would be likely to breach the Human Rights Act and human rights convention. This underlines the point that there is no need for this amendment to protect the right to judicial review in relation to the exercise of powers under this Bill.
However, judicial review is not an appeal or a rehearing of the substantive decision taken by the Secretary of State. A full review of the substantive decision may be undertaken by the DTI on application. That is an important point because, as the noble Baroness may know, judicial review is an extensive burden for someone to take on. A review undertaken by the DTI on application is a mechanism open to all applicants, whose licence has been refused, revoked or suspended. It includes the ability for the applicant to seek a personal hearing and to be legally represented. The appeal would be determined by a senior person who was not involved with the original application and decision. This system exists now and will continue to exist. Subsequent to the appeal, if still dissatisfied, the aggrieved person would be able to make a claim for judicial review.
Because the right of judicial review already exists, and is unaffected by the order-making powers in the Bill, it is unnecessary to include such a provision in the Bill. I would, therefore, invite the noble Baroness and the noble Lord to withdraw their amendment.
Baroness Miller of Hendon: I shall read carefully what the noble Lord has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 33:
The noble Baroness said: It is no exaggeration for me to say that Amendment No. 33 is of fundamental importance to the Bill. However, I can explain it simply and briefly. It is fundamental because it goes to the heart of the reasons for the introduction of the Bill.
Your Lordships will recall, as has been mentioned several times in this House and in the other place, that the need for the Bill follows the findings of the Scott report. That report made a number of specific recommendations that were expected by all parties. It specifically recommended certain procedural steps and matters to be included in any export licence. When I first read the Bill, I was surprised that nowhere are those recommendations carried into effect.
The amendment simply sets out those recommendations and requires them to be incorporated in any order made under the clause. That would be achieved in one of two ways, either by
I invite your Lordships to look at the six Scott recommendations that are set out in the amendment. The first is that there should be a standard form of licence application. That would mean that there would be no question of delay on the grounds of inadequate details being supplied.
Secondly, there should be a fixed time for the authorities to require additional information. In other words, this provision is to concentrate the minds of those dealing with the application.
Thirdly, unless there is a refusal of the licence, one should fix a time after which an application will be deemed to have been granted. That too is designed to prevent lengthy delays, the result of which is lost business either because an order is cancelled or because a potential customer goes elsewhere, because he knows that his order is likely to be delayed excessively. There is urgent need for an obligation on the government departments involved to proceed expeditiously. We have already heard of the failure of the DTI to achieve its targets for the issue of licences by almost 50 per cent. The Defence Manufacturers Association tell me that it is aware of cases where export licences have been approved by both the Ministry of Defence and the Foreign and Commonwealth Office and returned to the DTI for final processing where further delays have then occurred. There has been one instance in which this further delay of two weeks cost the exporter concerned the business, as the customer cancelled the contract in frustration at the delay.
The DMA also reports another case in which the exporter knows that the MoD and the FCO gave their advice in favour of approval last September, but the licence is still awaited. Apart from a standard time after which a licence shall be deemed to be granted, as I propose in subsection (3) of the amendment, I believe that a specific time should be set in the regulations for the DTI to issue a licence after it has received a positive recommendation from its advisory departments.
Fourthly, an explanation should be given for any refusal of a licence unless of course there is a security reason for not giving one. In either case, as the amendment explains, this is to enable the unsuccessful applicant to appeal should he wish to do so.
The fifth recommendation is that the Secretary of State shall prescribe an appeals procedure.
Lastly, where a licence is deemed to be granted because of an absence of response from the department, the Secretary of State shall grant written proof that the applicant is free to export the goods in question.
In simple terms, the amendment is really a test for the Government. Either they accept the Scott recommendations, as they say they do, or they want to reserve the right to depart from them. If they accept the
Lord Judd: I find the noble Baroness, Lady Miller, as wonderfully seductive as ever in her argument, but there is only one point in her argument on which I agree with her on this amendment; that is, that it goes to the heart of the Bill. In saying that, we should think back to what the right reverend Prelate was saying earlier in our deliberations.
In the past I have been a member of the defence ministerial team. All of us surely see defence in the modern context as preserving peace and security. The evidence which has accumulated in recent decades has demonstrated repeatedly that arms are very dangerous and disruptive to peace and security.
I do not believe that we will get our export policy on arms right until we get a change of mindset which says that here should be a presumption that one does not export arms unless there is a very good reason for exporting them that makes sense in terms of a commitment to international peace and security; hence the need for the other points that we have been discussing on previous amendments. Therefore, in great affection I would suggest to the noble Baroness that she has the matter around exactly the wrong way; that there should in fact be a system of deemed refusal. Of course very often it is the most complicated, the most risky and the most intriguing deals that take the longest for the Government to evaluate and to reach a final conclusion on.
I suggest—I am sure that she does not intend it—that the noble Baroness is putting pressure on the Government to gallop into decisions which might be very ill-advised.
"(3) No such order shall exclude the right of an applicant for a licence to apply to the High Court in appropriate cases for a judicial review of any refusal to grant such a licence or the imposition of any condition or conditions in such licence notwithstanding any other rights of appeal that may exist under this Act or any order made hereunder.".
Page 5, line 19, at end insert—
"(4) An order under any of the preceding provisions of this Act shall (unless there shall be in force a general order applying the requirements set out in subsection (3)) make provision—
(a) for a prescribed form of application in which descriptive details of the goods or technology in question, their value and the identity and address of the proposed consignee, and if known, both the potential uses and the actual uses by the consignee are set out;
(b) for the time after receipt of an application in which further information can be sought by the licensing authority to supplement the information contained in the application;
(c) prescribing a time (which may be varied between different types of applications or between different types of goods and technology) after the receipt of the application and any further information when an application shall be deemed to have been granted unless refused;
(d) for written reasons for refusal of any application to be given to the applicant, provided that if the refusal is for security reasons that fact should be stated, and details of either sort of reason shall contain sufficient information to enable the applicant, if so advised, to challenge the reasons on appeal; and
(e) prescribing an appeals procedure, either by way of a hearing or by written representations or both, and for reasons for the dismissal of any appeal, subject to security considerations, to be made known to the exporter in writing.
(5) In any case where a licence is deemed to have been granted pursuant to subsection (4)(c), the Secretary of State shall provide the applicant on request with a written document confirming that the export of the goods or technology is authorised."
10 p.m.
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