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Lord Joffe: My Lords, I thank noble Lords who have spoken in support of the amendment. The essence of the Minister's response is that it is impractical to impose the controls that we are discussing. However, he has not answered the question about which I wrote to him; namely, why is it practical to enforce controls on the trafficking of long-range missiles and instruments of torture but not on small arms? I have received no answer to that.

The Minister mentioned the USA and sought to gain great comfort for his case from the fact that there have been no prosecutions so far under the US brokering law. However, the test of good legislation is not the number of prosecutions which result from it but whether the activity which it seeks to address is affected. We have no information on that at all. If there was a determination on the part of the Government to impose controls on small arms and light weapons, they could enforce it. I speak from my experience as a human rights lawyer in South Africa where the government were determined to impose their will on their subjects and had no difficulty in prosecuting many of my clients who expressed their views in the United Kingdom where they were free to do so. That evidence was used in order to gain convictions in South Africa.

The Minister said that the legislation we are discussing aligns with the manifesto commitment to control small arms trafficking wherever it is carried out. That cannot be so. It covers a tiny proportion of arms, which are enumerated, but not with the most important of all from the point of view of innocent civilians in the developing world who will be exposed

20 May 2002 : Column 550

to the dangers of injury and death through the trafficking of arms by UK nationals. It is extraordinary that in considering the relative importance of this handful of UK arms traffickers based overseas, the Government show no concern in balancing the importance of the legislation vis-à-vis the ultimate victims of that arms trafficking.

I am not persuaded by the reasons advanced by the Minister. I wish to test the opinion of the House.

4.58 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

*Their Lordships divided: Contents, 71; Not-Contents, 129.

Division No. 1


Ackner, L.
Addington, L.
Alton of Liverpool, L.
Ampthill, L.
Ashcroft, L.
Attlee, E.
Avebury, L.
Beaumont of Whitley, L.
Birmingham, Bp.
Blood, B.
Bowness, L.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Bruce of Donington, L.
Carlisle of Bucklow, L.
Cavendish of Furness, L.
Clement-Jones, L.
Colville of Culross, V.
Craig of Radley, L.
Dholakia, L.
Elles, B.
Ezra, L.
Gray of Contin, L.
Greengross, B.
Hamwee, B.
Holderness, L.
Hooper, B.
Hooson, L.
Howarth of Breckland, B.
Joffe, L. [Teller]
Laird, L.
Laming, L.
Lane of Horsell, L.
Lester of Herne Hill, L.
Lyell, L.
McNally, L.
Maddock, B.
Manchester, Bp.
Moynihan, L.
Newby, L.
Oakeshott of Seagrove Bay, L.
Palmer, L.
Park of Monmouth, B.
Perry of Southwark, B.
Prior, L.
Razzall, L.
Redesdale, L. [Teller]
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Salisbury, Bp.
Sandwich, E.
Scott of Needham Market, B.
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Smith of Clifton, L.
Stoddart of Swindon, L.
Tenby, V.
Thomas of Walliswood, B.
Vinson, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Watson of Richmond, L.
Weatherill, L.
Wigoder, L.
Wilberforce, L.
Williams of Crosby, B.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L. [Teller]
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Corbett of Castle Vale, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Grocott, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Roll of Ipsden, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Serota, B.
Sheldon, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Wedderburn of Charlton, L.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Woolmer of Leeds, L.

[*The Tellers for the Contents reported 71 votes. The Clerks recorded 70 names.]

Resolved in the negative, and amendment disagreed to accordingly.

20 May 2002 : Column 551

5.8 p.m.

Lord Campbell-Savours moved Amendment No. 5:

    After Clause 11, insert the following new clause—

(1) There shall be a Committee, to be known as the Defence Exports Scrutiny Committee (in this section referred to as "the Committee") to examine United Kingdom defence export licence applications and the licensing process.
(2) The Committee shall consist of nine members—
(a) drawn both from the members of the House of Commons and from the members of the House of Lords; and
(b) none of whom shall be Ministers of the Crown.

20 May 2002 : Column 552

(3) The members of the Committee shall be appointed by the Prime Minister after consultation with the Leader of the Opposition, within the meaning of the Ministerial and other Salaries Act 1975 (c. 27); and one of those members shall be so appointed as the chairman of the Committee.
(4) The Prime Minister may by order make provisions as to the tenure of office, members of, the procedure of and other matters relating to, the Committee.
(5) The Committee shall make an annual report on the discharge of their functions to the Prime Minister and may at any time report to him on any matter relating to the discharge of those functions.
(6) The Prime Minister shall lay before each House of Parliament a copy of each report made by the Committee under subsection (5) together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
(7) If it appears to the Prime Minister that it is evident that the publication of any matter was exempt under the Code of Practice to Government Information, the Prime Minister may exclude the matter from the copy of the report as laid before each House of Parliament."

The noble Lord said: My Lords, on Report—on 18th April—we debated an amendment that is similar to Amendment No. 5. Those who are following the progress of the debate on prior scrutiny will find relevant references at cols. 1185-97 of the Official Report.

The amendment would establish the defence exports scrutiny committee—known as the DESC—which is modelled on the Intelligence and Security Committee, which was set up under the Intelligence Services Act 1994. The role of the committee would be to advise Ministers; it would not have the power to decide, as was unfortunately reported in an article by Andy McSmith in this morning's Daily Telegraph. Its role would be only to advise government.

I do not intend to rehearse all of the arguments. They were dealt with in Committee and are set out at cols. 864-74. In that debate, we dealt with the question of tenure of office, committee procedures, access to information, definitions of sensitive information, the staging of notification of licence applications, measures for the avoidance of delay, conflict of interest issues and the details of secondary legislation.

However, circumstances have changed; I shall explain how. First, an Early-Day Motion tabled in the other place states:

    "This House believes that specified defence export licence applications should be subject to prior scrutiny by a committee comprising honourable Members of Parliament".

It currently has the support of 310 elected Members of Parliament and in the next few weeks it will no doubt gain the support of a majority of the House of Commons.

Secondly, during a poll carried out by an organisation called Taylor Nelson Sofres, a sample of 1,023 adults were asked:

    "How much do you agree or disagree that . . . the Government should give MPs the power to advise it on arms sales to sensitive regions before the weapons are exported?".

Sixty-four per cent of the general public agreed and only 17 per cent disagreed.

20 May 2002 : Column 553

Thirdly, I understand that a national write-in campaign to Ministers is currently under way, organised by the lobby outside. Clearly there is a substantial amount of support both within and outside Parliament.

Following the many meetings that have taken place with Ministers over recent weeks since these matters were first raised during the Second Reading of the Bill, in my view only two issues remain outstanding. No doubt the Minister will deal with those this evening. One relates to the question of overlap with the Quadripartite Committee and the other relates to judicial review. I want to say a word or two about those.

On the question of overlap with the Quadripartite Committee, the final state of play—I use that term in the sense that these debates clearly take place all the time with the parties involved—is that the QSC will remain the only public face of accountability. We need to understand that the QSC is only a name given to describe the forum in which four Select Committees in the other place agree to meet jointly as against individually, thereby avoiding a duplication of effort. I refer to the Select Committees on Trade and Industry, International Development, Foreign Affairs and Defence.

Under the structure that we are setting out to establish this evening, the QSC would confine its remit to the assessment of the annual report on strategic exports and the issues of policy that flow from that. It is envisaged that it would meet three times a year in the period following publication of the annual report. The first session would be deliberative; the second would involve the examination of Ministers; and the third would deal with the approval of the QSC's report. That is hardly onerous for departments.

I mention that in relation to the activities of the QSC because it has been put to us that retaining the QSC in addition to the DESC may place too great an obligation and too much work on departments. That is clearly not the case, and I hope that my noble friend will be able to deal with that point this evening.

I turn to the question of judicial review. My noble friend on the Front Bench raised that issue with me during the most recent meeting that I had with him, and he and I both agreed that we would go away and do a little further homework. First, I want to refer my noble friend to the advice of Kate Cook of Matrix Chambers on these matters. I quote specifically from the paragraph in her report to outside lobbies which have taken an interest in these matters—in particular, Saferworld:

    "The Government's apparent concern that provision for Parliamentary scrutiny would constitute unlawful sub-delegation is, on analysis, misplaced because . . . there would be no sub-delegation of the decision-making function, since Parliament would have only an advisory role; and . . . even if there were any sub-delegation, it would be lawful because it would have been authorised by Act of Parliament".

Reminding my noble friend of arguments that he has used during the course of our private discussions, I quote that in order to point out that it might be possible to establish this structure outside primary

20 May 2002 : Column 554

legislation. Indeed, I understand that it may be possible to do so simply by a decision of Ministers. It is being argued here that, by the use of primary legislation, we reinforce the privilege of the committee that has been created.

I now wish to refer my noble friend to the advice that I was given as a member of the ISC. Of course, the ISC, characterised by a structure similar to the one that I am advocating for the DESC, has clearly had to consider these precise matters. In response to a specific question, the advice that I was given in my role as a member of that committee was the advice given by the ISC to the Prime Minister, as would happen in this case, rather than to the public. Therefore, the committee is not responsible for any publication or any report laid before Parliament. The Prime Minister's position is protected by the Parliamentary Papers Act 1840, which extends absolute privilege to any paper ordered to be printed by either House.

So far as concerns defamation—I place these matters on the record tonight because this discussion may be ongoing—there must be a good argument. I was told that the advice of the committee was protected by absolute privilege. The advice given by the committee to the Prime Minister is analogous to the advice given by the Secretary of State for India to the Parliamentary Under-Secretary. I refer to the old case of Chatterton v. Secretary of State for India in Council 1895. Such advice involves communications between high officers of state on matters of public interest. Chatterton was referred to in the more recent Fayed case of 1998. If absolute privilege applied, then no action could be maintained, no matter how false or malicious the statement. I draw attention to that only because these matters will no doubt be considered by the department.

Finally, I refer back to the EDM. The Early-Day Motion in the other place is supported by almost half the Members of the House of Commons. It includes a large number of former Ministers of both this Government and a previous government. I understand that it includes the support of most of those who have, at one time or another, been chairmen of Select Committees of the House of Commons.

In so far as the House of Commons has almost spoken on the matter in the form of an EDM, I suggest to my noble friend that it might be wise to agree to this amendment this evening and then to test the opinion of the other place, particularly as this is only an enabling amendment. It does not set down in detail the rules that would apply to the operation of the DESC, as I set out in an amendment on Report. If it is an enabling amendment, nothing is lost. In the event that Ministers opposed what might have been carried on the nod by the Government tonight, the other place would be required to come to a decision.

I believe that I have made my case. I hope that my noble friend has listened intently to my argument because these issues will not go away. If we do not win

20 May 2002 : Column 555

on the matter tonight, I understand that the Quadripartite Committee will persist in pressing the case in the future. I beg to move.

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