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Baroness Miller of Hendon moved Amendment No. 21:

"(3) 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 this subsection) 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) prescribing 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.
(e) for reasons under paragraph (c) above to contain sufficient information to enable the applicant, if so advised to challenge the reasons on appeal; and
(f) 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 being made known to the exporter in writing.
(4) In any case where a licence is deemed to have been granted pursuant to subsection (3)(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."

The noble Baroness said: My Lords, the genesis of the Bill is unarguably the gaps in the law—a law that has been in existence since 1939—that were revealed by the notorious Matrix Churchill case and the remedies suggested in the Scott report following the inquiry that was set up by the previous government.

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The report made a number of specific recommendations that were accepted by all parties. I stress the words "accepted by all parties" because I have just noted that I was reported in the Official Report of the debate in Committee as saying that they were "expected by all parties". From time to time, if one does not hand in one's notes quickly enough, mishears unfortunately occur.

I said to the Committee that when I read the Bill I was surprised that nowhere in it were the basic Scott recommendations carried into effect. My former surprise has now been compounded by the vehemence with which the Government rejected my amendment. I shall not trouble your Lordships by going through each of the five paragraphs (a) to (f) and subsection (4) of the amendment. They are all self-explanatory and I emphasise that they follow the recommendations of the Scott report which the Government quite clearly do not wish to put into effect in primary legislation. I quote what the Minister said in his reply to the Committee:

    "The Government set out their views about what are essentially procedural matters in the White Paper on Strategic Export Controls, published in 1998".—[Official Report, 7/2/02; col. 847.]

Indeed, they did.

The Minister quoted from the White Paper, which states:

    "The Government considers that there could be merit in setting out the basic elements of the licensing process in primary legislation, but not the detailed procedures. The latter are, in the Government's view, best included either in secondary legislation, or in guidance material, as at present, or a mixture of the two".

My amendment clearly and unequivocally does what the Government suggested in the White Paper. It sets out the basic elements of a licensing regime without being prescriptive of the detail. The amendment says that an order shall make provision for the five factors set out in paragraphs (a) to (e). Those provisions are in general terms, not in detail, which the amendment leaves specifically to the order that will be made.

I shall deal with some of the specious arguments that have been made as the Government's reasons for rejecting the Scott proposals which, in opposition, they endorsed. The first refers to licensing by default. That is the Government's default in dealing with a licence application. The Minster suggested that there was a risk of licences being granted contrary to the United Kingdom's international obligations, or of more licences being refused. The fact that there is a time limit will concentrate the Department's mind on the matter, and there is nothing to prevent regulations to provide for the applicant to grant additional time to avoid a refusal. I am sure that the parliamentary draftsman who framed the regulations could easily cope with the simple provision. If he cannot, I know someone who can.

The second argument refers to security provisions that might preclude the giving of detailed reasons for a refusal, but as the Minister conceded, that aspect was covered by paragraph (d) of the amendment. Scott similarly covered the same point. Thirdly, the Minister

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said that the appeals procedure is already set out in the regulations. I agree that the regulations more or less cover the point that I am making in paragraph (e), but there is no reason why the Bill should not prescribe that such regulations should be made and kept in place, and not arbitrarily cancelled at some time without something adequate being put in its place.

Fourthly, it was said that regulations may need to be changed over time. I agree, but there is nothing in the amendment saying that they cannot be changed and there is nothing that modifies the wide regulatory power that the Secretary of State is given under subsection (1) of the clause, which states:

    "An order under any of the preceding provisions of this Act may . . . make provision"

and goes on to list a menu of eight items which the Secretary of State can order.

All that my amendment does in general terms is specify the criteria for any order. It asks for a prescribed form to be used, which could be changed from time to time. It asks for the Secretary of State to set a time limit for seeking supplementary information; it does not specify the length of that time limit, nor does it specify the time after which an application is deemed to be granted if it has not actually been refused, and so on.

It seems that from the Minister's remark about regulations needing to be changed from time to time, he has read my amendment as if it were prescribing the details of the regulations themselves, which I hope your Lordships will see does not. I said in Committee that I considered the amendment to be a test of whether the Government accepted the Scott recommendations or whether they wanted to depart from them. Clearly, now that they are in office, they want to depart from those recommendations that they accepted while in opposition.

More than that, now that they are translating their own White Paper into legislation, they are rejecting the principles that they set out there as well. This is a case of the Government propose, but Whitehall disposes, and it is time that the Government translated their publicly announced policies into legislation. I urge them to be consistent. They should accept this non-partisan amendment and put into place the procedures which they previously said they espoused. I beg to move.

Lord Bach: My Lords, I am delighted that the noble Baroness described her amendment as non-partisan, but I noted that there was quite a lot of partisanship in her speech. However, perhaps I shall put that on one side.

I hope that my response to her amendment will not be vehement, but I shall try to reply with some force and perhaps a little common sense, too. We do not accept that such detailed procedural matters as she proposes belong in the Bill. There is a fundamental difference in approach with regard to licensing by default, represented by her Amendment No. 21, which we cannot accept.

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As with the earlier version of this amendment, Amendment No. 21 seeks to add a number of detailed matters to the Bill. It requires orders to make provision for a prescribed form of licence application; a time within which any additional information must be sought by the licensing authority; a time after which a licence would be deemed to have been granted unless refused; written reasons for the refusal of a licence application which should be sufficient to enable the applicant to make an appeal; and for prescribing an appeals procedure. Proposed subsections (3)(c) and (4) would require the Secretary of State, in effect, to issue a licence by default if a decision had not been made within a prescribed timescale. Those various provisions concern procedures or, in the case of licensing by default, a fundamentally different approach to export licensing.

As was explained in Committee, the 1998 White Paper on Strategic Export Controls set out our views on procedural matters. We stick by that judgment, which was that the basic elements of the licensing process should be provided for in primary legislation but not detailed procedures. Indeed, the basic elements are set out in Clause 6. That clause contains powers to make provisions relating to prohibited activities, exemptions, record keeping, the provision of information and so forth. It is comprehensive in what it enables us to include in orders. There is absolutely no need to include the sort of detail proposed in subsection (3) of the amendment.

Let us look again at the various subsections of the amendment. We do in fact have standard licence application forms, but that does not need to be provided for in primary legislation. When we discussed this earlier, the noble Baroness said that such applications,

    "would mean that there would be no question of delay on the grounds of inadequate details being supplied".—[Official Report, 7/2/02; col. 846.]

That is not quite right. For example, it is necessary to obtain details in addition to information on a licence application form, so the intended effect would not be achieved because there would be cases where further clarification and further details might be required. That is the nature of the process, which needs to be thorough.

Prescribing the form of application brings home the point about it not being appropriate to include powers to prescribe detailed matters in the Bill. The form of licence application is an administrative matter, plain and simple.

I move on to the issue of licensing by default or, as it is expressed, exports that are "deemed" to be permitted. The White Paper also made clear that there were unacceptable risks associated with that. We need to be able to assess all licence applications against guidance that will be published under Clause 7 of the Bill and laid before Parliament. We need to be able to ensure that licences are granted in accordance with the UK's international obligations and commitments. That cannot be achieved by a casual and risky licensing by default approach. While we accept the need to process export licences expeditiously, we should not put pure speed of processing licence applications above much more important objectives. As was said before, and I repeat, a licensing by default approach would result in

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many more licences being refused because that would be the only responsible approach if an arbitrary processing deadline was imposed.

Our view was shared, quite rightly, by the last Conservative government in their response to the report of the noble and learned Lord, Lord Scott. I want to reassure the noble Baroness—this is perhaps what is really behind her amendment, if I may be so bold as to say—that we try to deal with applications expeditiously. I know from her Second Reading speech that the noble Baroness's concern is about delays which sometimes occur. We work hard to try to reduce processing time. In particular, all long-standing cases are now regularly reviewed to ensure that they are progressed as quickly as possible. Nevertheless it is true that in a small proportion of particularly difficult cases—it should not be under-estimated how difficult some cases are to determine—delays can occur.

We already give written reasons for refusing a licence application. However, in some cases, for reasons of national security, only a broad explanation can be given. We write to ensure that there is sufficient information for an unsuccessful applicant to make an appeal. The dummy orders we published last October provide for appeals. Article 14 on the export of goods, transfer of technology and provision of technical assistance and Article 8 on trade in controlled goods of the dummy draft order include such provisions.

We are certain that the Bill will enable us to modernise our existing export control regime. That is the purpose behind it. We think that it would be a mistake to try and attempt to include a number of specific procedural powers. I hope it will satisfy the noble Baroness if I repeat that it is our intention to try and make sure that there are fewer and fewer delays in processing export licence applications. I therefore invite her to withdraw the amendment.

9.30 p.m.

Baroness Miller of Hendon: My Lords, I am grateful to the noble Lord for his response. I shall accept what he says that there are fewer and fewer delays. I said that it was a non-partisan amendment. I am surprised that the noble Lord thought it was not. He has obviously not been opposite me enough. If I had meant to be political, I think he would have known the difference. Having said that, I can see that I shall not get anywhere with the amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

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