Select Committee on Defence Minutes of Evidence

Examination of Witnesses (Questions 140 - 159)



Sir John Stanley

  140. Just for the record, Lord Scott, there is absolutely no reason why you should have got involved in this particular debate because, as you rightly pointed out, this was not within your compass when you made your report, and there is no reason why you should have read yourself in in terms of what these four Committees have proposed. Just for the record, can you confirm for us that in making that instantaneous response to Mr George's question you have not actually so far read the full proposal as stated in our report of July last year and our refined proposal as stated in detail in our report of March this year, is that the case?
  (Lord Scott of Foscote) I will put my glasses on to see what it is I have read. I have read the second report on Strategic Export Controls which was printed in December 1998 but that is all.


  141. We have moved on since then.
  (Lord Scott of Foscote) Yes.

Sir John Stanley

  142. This is obviously no criticism but we have produced a very detailed proposal and, for example, the point you are making about delays and so on and non practicability we believe we have totally overcome those and certainly we believe there are no legal or constitutional issues. I am glad we have had this exchange. We have put it into context. I am sure our Chairman will make certain that you are fully sighted on the detail of our proposal and I know in your usual way you will look at it with a very careful open mind.
  (Lord Scott of Foscote) I can confirm that I have not read that material and I reserve on this occasion, as most, the right to change my mind.

  Sir John Stanley: We hope equally the Government will be showing the same flexibility of mind as well.


  143. The parliamentary control which you did report upon was, of course, the whole question of parliamentary scrutiny and supervision of Orders.
  (Lord Scott of Foscote) Yes.

  144. You will have seen from the draft Bill that the proposal is that there is going to be a negative procedure on such Orders. Is it still your judgment that the nature of the Orders is such that they require a form of affirmative consent or do you find that the draft Bill as it stands does meet the concerns you expressed in your original report?
  (Lord Scott of Foscote) Well, the draft Bill provision for a negative procedure in regard to the Control Orders made is plainly much, much better than the absence of any provision in the predecessor Act and the emergency Act of 1939. I think it would probably have been too much to have expected that every single Order made under the empowering provisions of the Act would ever have been subject to affirmative procedure because the time involved might have made it difficult, although there is a procedure for dealing with that which is to be used in connection with the powers under, I think it is, Section 3(2). I was very pleased to see that any amendment of the purposes also needs affirmative resolution procedure. Yes, I would have preferred affirmative resolution procedure, as I said in my report. At the time I wrote the report I did not think it was very likely to be a proposal which was attractive to Government. I think it is a fair comment that generally speaking Government prefers a negative resolution procedure to affirmative for the obvious reasons of control and time that are involved. I remain of the view that affirmative resolution procedure would have been preferable with an exception, although it might have been difficult to draft, for minor amendments, technical changes. For anything substantial it would have been preferable. I am not in the least surprised, and not particularly disappointed, that it is not there, I did not really have any huge expectation that it would be.

  145. One of the really significant and ground breaking bits of this draft Bill is in fact putting the Schedule of purposes in.
  (Lord Scott of Foscote) Yes.

  146. This is going to be the first time in law we will have a Schedule of purposes for export controls. May we explore that further.
  (Lord Scott of Foscote) Of course.

Mr Viggers

  147. Yes. Lord Scott, your report called for a debate on the purposes for which export controls could be used, and for them to be set out in legislation. Does the Schedule meet this point in your opinion?
  (Lord Scott of Foscote) Yes, I think it does, broadly speaking. The suggested purposes that I specified in my report were very much a first effort. I expected there to be considerable thought, discussion, consultation about what the final product should be and I believe there has been.

  148. Have you see the final product so far in draft form? Have you anything to add to the debate?
  (Lord Scott of Foscote) Not of substance, no.

  149. The purposes seem to be related to the imposition of export controls by Orders rather than by the actual licences. Your report raised the question of whether the licensing system should be used as an instrument of general foreign policy. Does the Schedule solve this problem?
  (Lord Scott of Foscote) Yes, coupled with one other thing. I thought it essential that refusals of licences, and perhaps grants of licences too, should be accompanied by reasons. Certainly refusals, but thinking about it perhaps grants also ought to have a restatement of reasons attached to them so that it is then transparent that the reasons are within the purposes. The Government has been much more forthcoming in the years since 1996 in responding to questions and giving information about its export licensing decisions. I mean particularly where the decisions where licences are granted as opposed to being refused. If that welcome trend continues, and I do not see any reason to suppose that it will not, it will be possible for Members of Parliament to see whether there have been licences granted that are within the purposes or whether they have been granted for some other purposes, such as the foreign policy purposes that you mentioned.

  150. Often, of course, the more explicit one is in giving reasons for one's judgment the more open one can be to challenge. I am thinking specifically of the possibility of judicial review. Do you think this is likely to happen?
  (Lord Scott of Foscote) Your comment is perfectly right, but provided the reasons fall reasonably within one or other of the purposes I would not expect them to be open to successful challenge. You have to qualify it by that adjective because there is nothing that can stop people making challenges.

  151. A reason outside the Schedule might be subject to challenge?
  (Lord Scott of Foscote) A reason outside the Schedule might be and deservedly might be.

  152. I am thinking of a case where perhaps a licence is refused to country A because of the likelihood of a more attractive contract with country B.
  (Lord Scott of Foscote) I think that was an example I gave in the report. Now, I do not believe that reason could be justified under any of the purposes in the Schedule which would require some pretty special pleading if that was not the case but, of course, circumstances alter cases. Maybe somebody could make out a case for saying some such reason could be brought in particular very special circumstances within one or other of the Schedule purposes, but I doubt it.

  153. Would you regard it as being within your remit to say whether you would welcome a broader use of judicial review?
  (Lord Scott of Foscote) What, in general?

  154. Yes.
  (Lord Scott of Foscote) I think I would leave that to the lawyers.

  155. Fair enough. Would you expect to see and would you think it appropriate for non-governmental organisations to challenge decisions?
  (Lord Scott of Foscote) Do you mean people like Amnesty?

  156. Yes, and Oxfam, the various bodies which appeared before us this morning?
  (Lord Scott of Foscote) Of course, they have a locus standi procedural ability to do that within limits under present procedures. They can only do it with permission given by the court and they would need to have a sufficient case to justify the getting of permission. If non-governmental organisations can show a sufficiently arguable case to obtain permission to move for judicial review they ought, in my view, to be allowed to do it in relation to decisions regarding export controls as with any other governmental decisions.

  157. Your report referred to the fact that there were remarkably few challenges to the 1939 Act before 1990. Would you envisage there are likely to be more?
  (Lord Scott of Foscote) I do not think I have any particular expectation about that. I think that will depend very much upon what the reasons look like, what the answers to Members of Parliament who ask questions about these matters are.


  158. Ms Baxendale, do you have a view about judicial review? Is this piece of legislation likely to spawn more judicial review?
  (Ms Baxendale) I believe requiring Government to give reasons is a very good idea because it clarifies the reasoning of the decision maker. I would expect that there probably would be more judicial review but whether it is successful or not depends on the reasons for the decision taken. I do not see it as a bad thing in the sense that I think giving reasons enables also those who receive the decision and other parties, such as non-governmental organisations, to know the reasoning process and to decide in some cases "yes, we thought it was a bad decision, now we understand the reason why we believe it is a good decision". I suspect though that you will be asking Lord Scott about Clause 3(2)—

  159. Yes.
  (Ms Baxendale)—which may have other answers to that.

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