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Lord Redesdale: I apologise for intervening, but could the Minister clarify what he has said? There are certain instances in which the Minister believes that "if any" would cut out vast areas that should not be covered in the Bill. That is not the intention of the amendment. At what point would sustainability come into effect? When would the relevant Minister or the Secretary of State say that an issue had a bearing on sustainability? If sustainability is not a hard and fast rule, there will be areas of debate over what fits into the criteria for sustainability and what does not.
Lord Sainsbury of Turville: We have to examine the areas in which we would want to give guidance that sustainability would not be applicable. There would be rather few of those, but I have mentioned two cases—in one it could not be done and in the other a government would certainly want to be able to give guidance that in certain cases such considerations did not apply. Otherwise we would not be able to give guidance that sustainability would not apply in those
cases. That would be unfortunate, because we want to be able to convey reasonably to people what criteria would be applied in particular circumstances.We also need to remember that the guidance we provide will have profound importance for those affected by the Bill. To ensure effective compliance with the new legislation, we need to be able to offer those who must comply as much clarity and legal certainty as possible. We must not be bound to a costly, mechanistic process that obliges us to consider every issue in every case, whether relevant or not, and which would detract from the legal certainty and clarity as to the reasons for the taking of particular licensing decisions.
When we published the consolidated criteria on arms exports in October 2000, we promised Parliament that we would apply the criteria "using judgment and common sense". However, maintaining that necessary flexibility and ensuring that this and future governments can continue to act within the legal bounds of our international obligations does not mean that we have created a loophole in the Bill so that future governments could simply choose to ignore sustainable development and schedule table considerations. The need to balance the need for flexibility with the need to ensure that such a loophole is not created has led the Government to devise the text that we have proposed. I entirely understand the concerns that some may have on that point, but I believe them to be unfounded. I hope that I shall be able to reassure noble Lords that the amendment is not necessary.
The words "if any" in the new clause would not allow a future government freedom to decide to ignore sustainable development or any of the schedule table issues by saying that they had considered sustainable development and concluded that it had no place in the consideration of any export licences.
The Bill makes it clear that it will be a requirement on all future governments to issue guidance about the general principles to be followed when exercising licensing powers and that the guidance must address sustainable development and the other important issues, such as human rights. Were a future government to decide not to take sustainable development considerations into account in arms exports, our new clause would require them to publish the decision, and so take it in the full glare of parliamentary scrutiny. It would also require the government to justify such a decision. Without such justification, a decision of that nature would be open to challenge in the courts.
Noble Lords will be aware that sustainable development and the issues listed in the schedule table are all reflected in the EU code of conduct on arms exports. While the UK is a member of the European Union and committed to the EU code of conduct on arms exports, it is hard to see how any future government could ignore any of the criteria, including that on sustainable development, without facing a real likelihood of successful challenge in the courts.
The code of conduct is a politically binding commitment to our EU partners under the common foreign and security policy. The only ways open to any future government to renege on that commitment would be either to renegotiate the code of conduct with our EU partners to remove one or more of the criteria—changes that I believe our partners would be most unwilling to make—or to withdraw unilaterally from the code, which would have enormous political consequences.
As long as the EU criteria exist and have not been denounced by the UK, a future government would find it very hard to justify any deviation from full application of the criteria. Moreover, the explicit reference to the consolidated criteria that we have included in subsection (8) of the new clause and the clear statement that they,
- "shall (until withdrawn or varied under this section) be treated as guidance"
I hope that what I have said today has reassured noble Lords that the Government's proposed drafting does strike an appropriate balance between maintaining a right and proper flexibility to decide—where it can be justified—that certain considerations are not relevant and preventing a future government from simply ignoring the schedule table and sustainable development issues. While I have very real sympathy with the aims of this amendment, not only do I feel it is not necessary, I also feel that it would be damaging to the Bill. In view of this explanation, I hope that noble Lords will agree to withdraw Amendment No. 48B.
Amendment No. 48C seeks to provide that any guidance issued under the new clause must be laid before Parliament within 28 days. Although I have every sympathy with what the amendment is seeking to do, the fact is that it is not required. The effect of the new clause as drafted is in fact to set a more demanding deadline for laying guidance issued under this clause before Parliament than the amendment seeks to do. The new clause already provides that any guidance issued under it shall be laid before Parliament and published, and there are powerful reasons why the Government will have to do that promptly and certainly well within a period of 28 days.
The new clause requires the Government to issue certain guidance, on general principles, to lay it before Parliament and to publish it. Were it not so published and laid before Parliament—the Government would expect to do both as nearly at the same time as is practically possible—doubt would be cast on whether that guidance had been properly issued as guidance under the new clause. I say as nearly at the same time as possible because a few days may be needed to publish a document suitable for laying before Parliament, while there may be a need to publish by more informal means—such as on the department's website and notices to exporters—any new guidance needed to deal with, for example, a crisis abroad.
Therefore, the Government would not be entitled to take licensing decisions in accordance with guidance that had not been published without risking challenge to such decisions by judicial review. We would also have to take steps to lay it before Parliament as quickly as possible thereafter—certainly within a few days—for the same reason. I think that that also deals with the point on the number of days after which guidance should be issued. As no effective action can be taken on the guidance until it is published, the Government have every incentive to get on and issue guidance as quickly as possible.
In view of this explanation, I hope that the noble Lords, Lord Razzall and Lord Redesdale, will agree that their amendment is not necessary to ensure prompt laying of guidance under the new clause before Parliament.
Finally, and returning just briefly to the issue of sustainable development, given the interesting and important discussion we have had, I thought that the Committee would wish to be aware that the Government have recognised the need to consider how the sustainable development criterion—criterion eight—of the Consolidated Criteria can most effectively be applied in assessing relevant export licence applications. The Government agree that there is a need for clearer procedures within Whitehall for reaching decisions where sustainable development is an issue. Therefore, I am pleased to announce today that the Cabinet Office has offered to lead an inter-departmental discussion of the issue, involving all departments with an interest.
I turn to Amendments Nos. 51 and 54. The amendments would have the effect that any guidance altering export licensing criteria issued by the Secretary of State under Clause 8 would be subject to parliamentary approval. As I explained, the government amendments that have just been agreed to will require the Secretary of State to issue guidance on the general principles to be followed when exercising licensing powers. This change will ensure that if any government wish in future to change the principles upon which the export control regime operates, they would be obliged to issue guidance stating what the new principles are and to lay that guidance before Parliament. This will ensure that no future Secretary of State could alter export licensing policy without informing Parliament.
The Government do not, however, believe that it is appropriate for there to be a duty to consult on guidance, or for the guidance to be subject to parliamentary approval. As is made clear in the Bill, guidance on the general principles to be followed when exercising licensing powers will incorporate the EU code of conduct on arms exports, which is a political agreement between EU member states. The code is kept under review by member states who may wish to agree changes and improvements to it. The Government need to be able to commit to such changes. We do not believe that it would be right for changes or additions to international agreements such as the EU code to be subject to potential veto by Parliament.
For similar reasons, it would be misleading to consult industry or non-governmental organisations on agreements that the Government are obliged to implement by virtue of their membership of international organisations. However, the Government are aware of the degree of public and parliamentary interest in export licensing. That is why we have carried out extensive consultation during formulation of the Bill. We also intend to hold a full public consultation on the draft orders to be introduced under the Bill, and would expect at the same time to explain in more detail what guidance we intend to issue under the Bill. In addition to formal public consultation, the Government are in regular contact with those organisations with an interest in export control policy in order to hear their views.
The proposed amendments also seek to ensure that any guidance under Clause 8 is laid before Parliament and published within 40 days. This time limit is unnecessary as Clause 8 already provides that any guidance issued under it shall be laid before Parliament and published, and there are powerful reasons why that should be done promptly. Publication of guidance gives exporters a degree of certainty as to how controls can be expected to be operated in a particular case. An exporter is entitled to assume that any licensing power would be exercised in accordance with guidance already published. If the power were not so exercised, he would be able to challenge a licensing decision by judicial review. To avoid that risk of challenge, the Secretary of State will need to publish guidance as soon as possible and in any event before taking a decision based on it.
Moreover, the Government do not consider it sensible for all guidance, including practical guidance on procedure, to have to be laid before Parliament as proposed by Amendment No. 51. The Export Control Organisation publishes on its website a vast range of guidance for exporters; for example, instructions on how to fill in export licence application forms or details of forthcoming export control seminars. This is updated constantly and if necessary on a daily basis. To lay this material before Parliament every time it was updated or changed would be unnecessarily to overburden the procedures for laying documents before Parliament. It would be unnecessary because this material is of course accessible to all Members of Parliament and the public from the DTI's website or on request from the Export Control Organisation.
Amendment No. 52 seeks to prevent the Secretary of State from having the flexibility to publish guidance in such manner as she thinks fit. This phrase is included to make it clear that the Secretary of State may publish guidance in whatever manner is most appropriate to that particular case. For example, guidance informing exporters of the introduction of a new arms embargo is usually published in the London Gazette and the Edinburgh Gazette as well as on the Export Control Organisation website, while guidance on procedures to follow in applying for an export licence might be published on the Export Control Organisation website and in information packs for new exporters. Although removing this phrase as proposed in the amendment would not alter the Secretary of State's discretion to
publish in whatever manner she thought fit, we believe for the sake of clarity and transparency that it should remain in the Bill.
In view of the explanations I have given, I hope that the noble Lords, Lord Razzall, Lord Redesdale and Lord Rotherwick, and the noble Baroness, Lady Miller, will be content to support Amendment No. 48A and agree to withdraw or not to press their amendments to it.
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