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The Earl of Sandwich: I support the amendment proposed so well by the right reverend Prelate the Bishop of Lichfield and by the Liberal Party. Nevertheless, I thank the Minister and the Department of Trade and Industry for recognising the strength of public feeling on the issue and specifically including sustainable development in the guidance, albeit in somewhat obscure language.
The reference, however, still falls short of what is required. I remind the Committee of the continuing public concern about the need for proper transparency and accountability during the licensing process, much
The new clause, as amended, reinforces consideration of each case against the existing EU and national criteria. The Government have already confirmed that all export licence applications are considered case by case against the consolidated EU and national arms export licensing criteria. For example, under sustainable development, which is criterion 8 of the EU code, the current application from BAe Systems to sell 60 Hawk fighters to the Indian Government for £1 billion is assessed not only against the UK economy but against the relationship between defence and social spending in the Indian budget.
Only a few days ago, just after the Foreign Secretary was in Delhi, promoting that sale, the Indian Finance Minister announced a 4.8 per cent increase in defence spending to 13.8 billion dollars. I am informed by Saferworld that, in the past two years and in the budget for next year, India's expenditure on defence amounts to an average of 15.5 per cent of the total budget, while health remains at 0.61 per cent and education at 2.33 per cent. Aid from all sources must also be taken into account under the criterion, and it is relevant that India is the largest recipient of UK bilateral aid, now over £100 million annually.
This is not the time to quote the criteria in full, but all those factors must already be taken into account by member states. Two other EU criteria will be relevant to the case of India: internal conflict and regional stability, both of which raise questions about Kashmir and the latest communal violence. I must also briefly mention Pakistan. Equipment licensed for export to Pakistan in the last annual report included components for combat helicopters and military communications equipment. The United Kingdom has taken a growing defence interest in Pakistan since September 11th. Yet its adult literacy is well below 50 per cent and defence spending is 60 per cent higher than health and education spending combined.
It is a relief that subsection (4)(a) of the new clause ensures that the guidance will now be strengthened. Sustainable development is explicitly referred to in the Bill. As the DTI note states rather quaintly, these issues, once on the statute book, can no longer be ignored by a future government.
Several noble Lords have already spoken about the need to strengthen even further the precise wording of the clause. I support those suggestions. For example, "regard shall be had" is a much stronger phrase than, "giving consideration (if any)". The words "if any" are almost offensive in this context. It would have been better to have included sustainable development as one of the relevant consequences of the schedule, a point made by the right reverend Prelate. As is the case in Amendment No. 79, that would bring it in line with other agreed major criteria. I still cannot understand why the Government have not done this. Perhaps the Minister can help us on that point.
Lord Razzall: In rising to join the right reverend Prelate in supporting my noble friend's Amendment No. 48B, I should also like to speak to Amendments Nos. 48C and 51, which have been included in this grouping. In the light of what the Minister said in his opening remarks, it is now for those of us on this side to indicate why, notwithstanding the significant movement made by the Government in response to representations from, in particular, the NGOs, the Churches and the Liberal Democrats, we are not yet satisfied with the government amendment that has been brought forward.
I shall give two reasons which have been encapsulated by Amendment No. 48B, as well as by the two amendments to which I now speak. First, significant concern has been expressed on all sides of the Committee that the overly weak language used in the government amendment could still allow a future government to disregard issues relating to sustainable development, human rights and regional stability in decisions on arms exports. Perhaps that sounds too cynicalI am sure that the Minister would regard it as suchbut I should point out that we have been here before. Noble Lords would do well to remember why we are here debating the Export Control Bill at all.
Any student of the Scott report which, following extensive consultation, formed the origin of the Bill before us, will remember that a major debate surrounding that report concerned the interpretation of "guidelines" on the sale of arms to certain regions. One of the central charges made by the then Sir Richard Scott was that the policy was changed in 1998 so that the text of guidelines that had originally been published in 1985 was altered, but Parliament had not been informed of that change. Thus the context in which Members on both sides of the Committee are seeking extensive clarity of language to satisfy us on this point lies in that history.
I know that that was not the Labour Government and I know that governments always believe they are better than the one before. Undoubtedly they believe that they are going to be better than the one that eventually succeeds them. Nevertheless, I am sure the Minister will accept that, on this particular issue with its particular history, the traditional role of your Lordships' House to make absolutely certain that the framework is correct is the proper role for this Chamber. I cannot believe that there is a Bill whose history could justify that more than does this Bill.
Secondly, I turn to Amendment No. 48C which requires any guidance to be brought before Parliament within 28 days. I am sure that the Minister will respond by saying that the proposal is unnecessary, but again I refer him back to the history of this matter. Guidelines were never laid before Parliament, policy was changed and no one ever knew about it. We are particularly concerned that a timetable should be put in place.
I turn to Amendment No. 51, and note that the noble Baroness, Lady Miller, has also tabled amendments to this part of the Bill. Under the structure being proposed by the Government, the only control we shall have over any changes made to the guidelines, in particular changes to guidance in so far as they might relate to sustainable development, will be if the changes are brought before both Houses of Parliament. While our amendment is only a probing amendmentthere have been so many alterations to the Bill that it may well be that the language now requires improvementit seeks to separate the less consequential changes to procedures from the fundamental changes. We may not have it quite right in the amendment, but we do feel that these procedures must be correct by the time that the Bill reaches the statute book.
The only mechanism under which Parliament can control the extremely important subject of sustainable development, which has engaged debate in this House over the past two to three months, is through these provisions. For that reason, I hope that when the Minister comes to respond, he will be able to give an explanation of why he feels that the amendments are inadequate so that, if he is not prepared to do so, we shall be able to improve them when they are brought back on Report.
Lord Hylton: I warmly welcome government Amendment No. 48A. I recognise that it is a real attempt to meet the very serious criticisms that were levied against the Bill both on Second Reading and in the earlier part of the Committee stage. However, having said that, I believe that Amendments Nos. 48B and 48C are necessary. I agree that we need to get rid of the words, "if any", and that the words "regard shall be had" are a great improvement on "consideration ... to be given". I should like to point out that in line 30 on page 5 of the Bill as introduced, it stated "have regard", but that it was, I admit, permissive. So this is an improvement.
On the matter of seeing any guidance within 28 days, I agree entirely with what was said by the noble Lord, Lord Razzall. I hope that the Government will take both of the amendments in the spirit in which they are intended.
Although I promise not to keep repeating it, perhaps I should remind the Committee that I am the honorary Senior Fellow of Saferworld. As an independent think-tank, Saferworld has been deeply involved in the analysis of this issue and I have been very much a part of that analysis. Therefore, I feel strongly about it.
At the outset of my remarks, I should like to make the point that in these kinds of situations, we have to be careful to ensure that the victory we seek in the course of our deliberations is not ultimately a pyrrhic one, in the sense that we may achieve the words, but the way in which we get those words has no muscle or substance behind it and indeed might be described by some as a situation almost worse than it was before.
Thus, at the outset, I should like to make the strategic point that this Bill is very good thing and I believe that my noble friend on the Front Bench deserves all possible support in what he is trying to achieve with it. I do not have a shred of doubt that everything he seeks to achieve is very much in harmony with that which all other Members of the Committee seek to achieve. Therefore, I am speaking to him, if I may use the phrase colloquially, as a friend and I am asking him to take some of our anxieties into account.
The Government propose to delete Clause 7 from the Bill. Whatever our concerns about the absence of the words "sustainable development", some of us feel that Clause 7 is very important. As the right reverend Prelate the Bishop of Lichfield properly said, the issue is not only about semantics. Legal advice has been taken in reputable quarters and it would be sensible to state that advice. It is quite uncompromising. The current Clause 7 lays down a specific, unqualified duty to have regard to specified matters, whereas the amended Clause 8 simply provides for a duty to issue guidance that will describe what consideration is to be given to those matters. At the very least that is unfortunate, if not retrograde.
The language in Amendment No. 48A is weaker than the language it seeks to replace in Clause 7. Under the existing language of the Bill, in Clause 7, the Secretary of State has to have regard to the potential consequences mentioned in the schedule. Under the proposed government amendment, the Secretary of State has only to issue guidance about the consideration, if any, to be given. While it might be tempting to regard these two phrases as close in meaning, the legal advice is that "to have regard to" something is a stronger duty than a duty "to give consideration to" something. That is why Amendment No. 48B is so important.
As has been said, the most worrying weakness in government Amendment No. 48A is the inclusion of the words "if any". The inclusion of this caveat would mean that the Secretary of State could simply ignore issues such as human rights and sustainable development when issuing guidance on export licensing. Again, the legal advice I have seen is that by including the words "if any" in the clause it is arguable that a Secretary of State who was minded so to do would be entitled to issue guidance stating that no consideration is to be given to any of the issues set out in the clause.
The DTI has argued that it needs to include the phrase "if any" in order to provide flexibility in cases of controlling exports where issues relating to sustainable development are not relevant. It gaveit is a serious pointthe example of the possible need to control exports of diseased cows, and yet it is quite possible to have this flexibility and still remove these two words and hence the loophole. Once again, the legal advice I have seen is that the Secretary of State can determine the weight to be placed on such issues and may confirm that in certain kinds of cases such issues are not relevant or may be of little consideration.
Clearly, if a Secretary of State was weighing-up exports of diseased cows, he would decide that there was no concern on the grounds of sustainable development. The Government already have a power of discretion; inserting "if any" in the Bill would simply provide a loophole that could be exploited for unacceptable purposes in the future.
The example given by the DTI of diseased cows strikes me as odd. I come from Cumbria, one of the areas of the country most affected by the foot-and-mouth outbreak, and I clearly recall that the Government considered whether to use the Export Control Bill at the height of the crisis to control the export of cows. They decided then that it was not the right vehicle. Indeed, during the consultation on the Bill, the issue of agricultural products was raised by the Quadripartite Committee, which asked whether extra controls should be inserted in the Bill to address it. The Government stated that exports of this nature are matters of exclusive European Community competence and that if there was any doubt then Clause 5 of the Bill already gives them all the power they need.
I conclude my intervention by putting some specific questions to my noble friend. It will help the Committee if he can answer them. Does he agree that it would be unfortunate to have a caveat in the Bill that allowed a future government to disregard concerns over human rights and sustainable development in arms exports decisions? Again, we have no doubts about my noble friend, but, as was argued on a previous amendment, we are introducing a law which will be there whoever may be in the ministerial position. Do not the Government therefore share the concern that the words "if any" could allow this to happen? Do they accept that if they removed this caveat they would still have all the necessary power they need to control exports in emergency situations?
Why do the Government propose to replace the stronger language of Clause 7"have regard to"with the weaker language of "consideration (if any)" in the amendment to Clause 8? Why are the words "if any" needed in the guidance to control emergencies such as diseased cows when these are already dealt with under Community law and elsewhere in the Bill? Would not the Animals and Animal Products (Import and Export) (England and Wales) Regulations 2000, as amended, be a more appropriate vehicle to control the export of diseased cows? I hope that my noble friend will be able to deal with these points when he comes to reply.
Earl Russell: It is allegedI say no more because I have not had an opportunity to check my sourcethat a Minister in a previous government once rose to move regulations against racial discrimination and said:
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