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The Earl of Sandwich: My Lords, I, too, support my noble friend's Amendment No. 17B, which we thought offered a reasonable compromise through the use of the phrase, "so far as relevant", although the previous proposed phrase—"regard shall be had"—seemed adequate.
While the Minister is listening to our niceties of phrase, other sections of government are pushing this Bill ahead despite considerable public concern about the use of British equipment in Tanzania, Sudan and other countries and territories in which sustainable development could be ignored. Now we have the additional consolidated criteria which were introduced on 8th July, which were mentioned by the noble Lord, Lord Judd. The NGOs, working with Palestinians in the West Bank and Gaza, who have had to suffer the direct impact of Israeli F-16s and the subsequent damage to life and property, have been astonished, as are their many supporters in this country, at this Government's ability, as the noble
Lord said, to ignore human rights and sustainable development and to publish the changes without consultation. On such occasions, one wonders about our right as a nation to pontificate on good governance in Africa and elsewhere when our own Executive appears to have the freedom of action to escape parliamentary scrutiny and introduce new criteria that merely reaffirm partnership with our Atlantic allies.The Foreign Secretary's statement contained the phrase:
- "The Government continues to be seriously concerned about the situation in the Occupied Territories".—[Official Report, 8/7/02, Commons; col. 651W.]
Meanwhile, I welcome the Minister's statement that there is a need for clearer procedures within Whitehall for reaching decisions where sustainable development is an issue. As the noble Lord, Lord Redesdale, said, we look forward to the review of criterion 8 in the guidance. I strongly agree with the noble Baroness, Lady Whitaker, that in keeping close to the international criteria, we should also be aware of and follow the stronger ECGD statement of business principles to ensure consistency in policy. I hope that the Minister will confirm that.
3.45 p.m.
The Lord Bishop of Oxford: My Lords, I share the concerns of the noble Lord, Lord Judd, about the extent of the discretion currently allowed in the interpretation of the criteria. When some of us were students, we learned how a bold statement could die the death of a thousand qualifications. I fear that a bold statement about guidance on sustainable development could die a similar death. The amendment in the name of the noble Lord, Lord Joffe, is therefore preferable because it imposes a clear and inescapable duty.
I say to the Minister that the arrangement gives to the Government proper discretion, freedom and flexibility because of the phrase, "so far as relevant". I find it very difficult to understand why the Government cannot agree to Amendment No. 17B.
Lord Brennan: My Lords, I again bring to the attention of the Minister the degree of concern felt on these Benches about the proper combination in such a Bill of national interest and of a moral commitment to sustainable development, especially in the developing world. There are those on these Benches who wish to be reassured, if there is a Division on the amendments, about the way in which the Government would seek to apply the Bill, once it has been enacted, and the guidance under it.
I have four questions for the Minister. It would greatly assist the House if the Minister answered them, as usual, in his clear and constructive way. First, is Amendment No. 17A to be read so as to endow the Minister with a discretion that is absolute? If not, what are the qualifications?
Secondly, what is the source of the Government's present criteria for determining issues involving sustainable development in relation to export control licences? Where do we look for it? The clarity of the Foreign Secretary's statement in July clearly set out issues of national interest that would properly play their part in the making of a decision but it said nothing about the relevance, if any, of sustainable development to those criteria. In addition, the Bill—and the guidance, about which we know nothing as yet—says nothing about any criteria. Are we on these Benches to look to the European code of conduct, to a government paper produced on a previous occasion or to some other Statement? If that could be provided today, it would be helpful and it would reassure us that there are criteria that the Government would apply in maintaining the balance between national interest and the needs of sustainable development.
Thirdly, will the Government consult on the guidance that they propose to publish so that those who are interested can play their part in making suggestions about what it should contain?
Lastly, if the Government say that the Bill is clear and that any public concern is met by the opportunity for the public to exert pressure in an appropriate case, how will the public know about such a case? Does the Government's approach that public pressure will play a balancing role implicitly mean that the Government will make public those cases in which they have had to make a decision or are about to make a decision which balances national interest considerations and those involving sustainable development? If it does mean that, could that be made explicit?
Answers to those questions, as best can be given today, would reassure us on these Benches that, whatever the terminology of this Bill—Amendment No. 17A smacks more of an author such as Kafka than any declaration of rights in this field—the Government's intention, which they would be prepared to carry out, would satisfy the public that when the Government make decisions, they will take into account the needs of sustainable development, where they are relevant, and give effect to them if the factors involved justify it.
My noble friend should not be misled by the fact that although this is a non-political question, those on the Opposition Benches confidently expect an appropriate and balanced approach by the Government. So do we, but we would like considerably more particulars than the other side asked for, in the way in which I have just put them.
Lord Razzall: My Lords, perhaps I may echo the sentiment expressed by the noble Lord, Lord Brennan, in relation to Kafka. I find it absolutely extraordinary that for the past 42 minutes we have been debating an
issue in respect of which, so far as I am aware, no noble Lord is not in favour of the proposition that the Government should take into account sustainable development in their export criteria. That seems to be common ground between us all; yet we are again debating two small words and five small letters—"if any".My noble friends and I have thought long and hard about whether the Government are being devious here. I have to conclude that they are not. We can therefore conclude only that this is a problem with the lawyers. On many occasions in this House—I say this as a former lawyer, and I am not looking at the noble Lord, Lord Brennan, at this point—we have had considerable sympathy with Jack Cade in the peasants' revolt, who indicated that when they arrived in London they would first kill all the lawyers. I believe that in this situation the Government have impaled themselves on their own legal advice.
As the noble Lord, Lord Judd, has indicated, one of the problems for the Government is that the umbrella organisation, the UK working group on arms, instead of simply accepting the legal advice that the Minister has been given, obtained their own legal advice stage by stage, step by step, as the Bill went through Committee, Report stage and Third Reading, until its arrival with your Lordships today.
The nub of the Government's argument during the passage of the Bill through your Lordships' House and through the House of Commons was that without the use of the words "if any", the Government would not in a relevant case be able to consider issues relating to sustainable development; or rather that where issues of sustainable development were not relevant, if the words "if any" were removed, the guidance would have to require them to consider issues relating to sustainable development where it was not relevant. We accepted that.
The noble Lord, Lord Joffe, and my noble friend Lord Redesdale tabled an amendment that provided for consideration of sustainable development where it was relevant. So we accepted the Government's statement on relevance. We understood the point of the words "if any", and my noble friend's amendment dealt with the Government's concern.
When the matter returned to the House of Commons, the Government raised the point about compatibility with European Union law. That was an entirely new point, which had not been raised in your Lordships' House. I do not need to rehearse the arguments. The noble Lord, Lord Judd, replied very succinctly and adequately to the point and to the advice that had been obtained by the UK working group on arms; namely, that the European Union criteria would override any British criteria, were that to become a problem.
I fear that the Government will not move on this point. As I have said, they have clearly impaled themselves on their own legal advice. If they do not intend to move on it, I believe that the Minister should give a significant assurance in Hansard for future
generations. The argument made from our side and from the Labour Benches is that the inclusion in this clause of the words "if any" means that a Secretary of State, if so minded, would be entitled to issue guidance stating that no consideration is to be given to any of the issues set out in the clause, including sustainable development.
If that is not the case, and if it is not the case that it would be impossible to challenge any such guidance on the grounds that it was ultra vires, which seems to be the Government's case, it would help those of us who believe that the legal advice the Government are receiving is wrong if the Minister could confirm that in his view no one could argue that it was an ultra vires deception. If the Minister could give us that clear undertaking, it would go a long way towards removing many of the concerns that noble Lords on all sides of the House have about those two small words, "if any".
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