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Lord Judd: My Lords, I am very grateful to my noble friend for giving way. What he has just said is exactly what puzzles us. If it is not really necessary to take the issue of sustainable development seriously,
there is no need to have the words "if any" in the Bill. Sane, sensible officials, sitting down to consider how to process this matter would very quickly see that in this issue it was not relevant. Why on earth do we have to put in the words "if any", thus giving some future Minister the opportunity to say, "In this case, not at all"?
Lord Sainsbury of Turville: My Lords, perhaps I may respond to a point made by the right reverend Prelate. We are considering legislation; we are not considering what a sensible lay person might think about the matter. When the legislation of a country says, "You must consider sustainable development", it must be considered. That is what laws are about. A government cannot say, "I am sorry, we are not going to consider it"; they must consider it. They cannot give guidance to say that they will not. Legislation sets certain requirements on governments and civil servants. It is therefore extremely important that the wording is flexible in that manner.
5 p.m.
Earl Russell: My Lords, is it not possible for a Minister to consider the issue of sustainable development and conclude that it does not apply to a case? Would it not be reassuring to know that the Minister had done so before deciding that it did not apply?
Lord Sainsbury of Turville: My Lords, I hope that that was the point that I made. In those circumstances, we could not then say to people in a sensible manner, "In the following sort of cases, under the regulations, we shall not consider sustainable development". We cannot give practical guidance to people to say, "No, in these cases"—such as sending a particular vehicle to America—"we shall not spend our time and you need not be concerned about our taking sustainability into account". That is what we are trying to deal with here, and it is not all right to say that civil servants and Ministers can just ignore or not take seriously what the legislation states.
Lord Judd: My Lords, I am most grateful to my noble friend for giving way again, and I apologise for interrupting again. We are not saying that they should not consider it; we are saying that early in the course of considering it, they would realise that it was not relevant and that there was no case.
Lord Sainsbury of Turville: My Lords, I have already answered that point. It is a question not only of considering it and saying whether it is relevant but of whether we can give sensible guidance.
It is true that Amendment No. 1, if accepted as an alternative to Amendment No. 24, would provide less of a blanket requirement on government to have regard to all issues in every case. However, it would retain the blanket requirement in respect of export controls on military goods. That would introduce a damaging rigidity to the arms export licensing process, obliging the Government to consider sustainable
development and every issue in the schedule's table in considering every arms export application, even where one or more of those issues was clearly not relevant—such as in the example that I gave of a military vehicle to be exported to a developed country. I also point out that the need not to compromise our ability to implement international commitments under the Bill applies equally to controls on military goods as to other categories of export control.However, we are confident that the words "if any" in Clause 7(4) would not allow a future government freedom to decide to ignore sustainable development, or any of the issues in the schedule's table, by saying simply, "We have considered sustainable development and concluded that it has no place in consideration of any export licences". The Bill makes clear that it will be a requirement on any government to issue guidance about the general principles to be followed when exercising licensing powers and that that guidance must address sustainable development and the other important issues covered in the schedule's table.
Moreover, Clause 7(5) requires that the Government "shall have regard" to that guidance when taking decisions on export licences. I emphasise that Clause 7(5) determines the status of the guidance, not Clause 7(4), which purely sets out what must be in the guidance.
I also reiterate the important point that were a future government to decide not to take sustainable development considerations into account in arms exports, not only would Clause 7 require them to publish that decision and so take it in the full glare of parliamentary scrutiny, but the Bill would also require them to justify such a decision. In that context, it is important to remember that the issue of sustainable development and the issues listed in the schedule's table are all reflected in the EU Code of Conduct for Arms Exports, which represents a binding political commitment to our EU partners.
While the UK is a member of the European Union and committed to the EU Code of Conduct for Arms Exports, it is difficult to see how any future government could ignore any of the criteria, including that of sustainable development, without facing a real likelihood of successful challenge in the courts. Moreover, the explicit reference to the consolidated criteria included in Clause 7(8) and the accompanying statement that the criteria,
- "shall (until withdrawn or varied under this section) be treated as guidance",
None the less, I recognise that concern continues to be felt about the possible intention or likely effect of the words "if any" in Clause 7(4). At my meeting last Friday with the UK Working Group on Arms, the group referred to advice obtained by it on the issue from Matrix Chambers and specifically to the suggestion in Matrix Chambers' advice that it might be helpful if a Minister were to spell out clearly in debate that the intention behind the inclusion of the words "if
any" is not to open up a loophole in the Bill. The group asked whether I would be prepared to give such an undertaking before the House at Report. I told it that I should be pleased to do so, and I am happy to put on record today that the intention behind the words "if any" in Clause 7(4) is purely to enable the Government to make commonsense decisions about the circumstances in which sustainable development, or any of the schedule issues, would not be relevant to a licensing decision.Not only are the words "if any" not intended to create a loophole allowing the Government to ignore any particular issue, we are confident that they do not offer any government the opportunity to ignore either sustainable development or any of the schedule issues, where that would be contrary to our obligations under the EU code of conduct.
I turn to the question of Tanzania as it relates to sustainability. I make clear that the Government would not have granted a licence in that case if to do so had been in contravention of the consolidated criteria. Sustainability was an issue that was taken into account and a judgment was reached on that basis.
In conclusion, I repeat that the Government acknowledge that the wording in Clause 7(4) provides a degree of flexibility which the wording proposed in the amendments does not. But I hope that noble Lords will accept my explanation of why that flexibility is needed and that they will also accept my categoric assurance that it does not offer a means by which a future government could choose to disregard sustainable development or the schedule issues in the export licensing process. On that basis, I hope that the noble Lord will withdraw the amendment.
Lord Redesdale: My Lords, I thank the Minister for that comprehensive reply and for his helpful assertion about the use of the words "if any". However, he finished by discussing the need for flexibility. That is the key issue about which many of us are concerned: the flexibility to decide what is and what is not important. To be granted, an export licence must fulfil many criteria. It is not beyond the wit of man to provide a box to be filled in. Although the clear example that the Minister gave of a military vehicle for America is cut and dried, the same cannot be said of many other cases.
I was also interested in the Minister's view that the intricacies of legislation are way beyond the layman.
Lord Sainsbury of Turville: My Lords, I did not say that. I said simply that approaching these matters by saying what I as a layman would think might be right is no kind of defence in law or a good argument in most legal cases, in which people tend to think that what the law says is what is important. Ministers cannot take a cavalier view about legislation and simply say that we ignore it because it is not sensible.
Lord Redesdale: My Lords, I apologise if I gave the wrong impression, but what the Minister said emphasises my problem with the expression "if any". Although the Minister has given a definition that the
Government will observe of "if any", if it were to be argued in court it would be a difficult case and not cut and dried.The Minister raised my example of Tanzania. The World Bank was not in favour of that loan and it will be interesting to hear what the International Civil Aviation Organisation has to say about what is actually a military air traffic control system.
This is a very good Bill. We support it, and I mean no criticism of it in introducing belt and braces. I make no insinuation that the Government have anything but the highest view of this. However, I believe that there is a loophole here and that it could be used. The matter could end up in court. Therefore, I beg leave to test the opinion of the House on the issue.
5.10 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 120.
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