Select Committee on Defence Minutes of Evidence

Examination of Witness (Questions 220 - 239)




  220. May we turn to the issue of the Schedule of purposes which we all agree is actually a ground breaking piece of legislation. This is the first time there will be in British law a Schedule of purposes of the kind that you are suggesting. Therefore, the fact that we may ask for more or seek to expand in many ways, Secretary of State, I hope is not too curmudgeonly of us.
  (Mr Byers) I would expect nothing else.

   Chairman: It is Oliver Twist by nature. Harry Cohen is going to continue with some of the additional points on this.

Mr Cohen

  221. I welcome very much the Schedule of purposes. At this stage it is reasonably comprehensive, although over time no doubt it will need to be added to, I think. Could I ask why the purposes in the Schedule apply to the Orders made under the Bill but the licences are left entirely to Ministers? Do you see any merit in giving the Government criteria and the EU Code as well at least some statutory backing, at least as "guidance"?
  (Mr Byers) I think in relation to the European Union and the national licensing criteria the important point about having the inclusion of the purposes in the Bill is it will establish parliamentary control over the purposes for which the legislation can be used. I think introducing that through the purpose route will make a real difference and hopefully overcome the sort of concerns that you might have. If we do it that way, and have running along side of it the licensing regime, then that, I would hope, would overcome some of the reservations that people might have.

  222. Let us put it this way then and look at it the other way round. Would you envisage that every time licences are dealt with in an administrative way the purposes are fully taken into account? They would not produce licence decisions that fell outside the purposes?

  (Mr Byers) My understanding is it would have to be within the purposes.

  223. Can I move on then to general purposes. The Scott Report raised the question as to whether it was proper to use export controls as a weapon of general foreign policy. He raised the point of Mr Bazoft's execution. Are these general purposes enough to give you flexibility and enough freedom to perhaps make export control refusals on this more general basis? Let us just give you an example: Zimbabwe. Would what is happening there to farmers, would the Bill and the purposes in there give you enough flexibility?
  (Mr Byers) I think so. A lot will depend on the detail and the way the purposes are drafted in terms of making sure that they have that degree of flexibility and clearly that is something that we would want to be able to do. It is worth stressing though, I think, that nothing is ever fixed and there are always circumstances that arise that, as we sit here in April 2001, we may not foresee for the future, or Parliament when it legislates and introduces the purposes may not have in mind. There always has to be an opportunity, if you like, to expand the purposes which are in the Bill or in the Act. There is a vehicle to enable us to do that. We think at the moment that there is the flexibility but if it proves not to be the case then there are two ways in which we can do it. We could either ask Parliament to approve a new purpose, which would be amending the legislation, or we would ask Parliament to approve an Order under clause 3(2). Those are two opportunities in which we can have an even greater degree of flexibility although, I have to say, I think the way in which purposes are worded at the moment I would expect them to be able to meet the sort of foreseeable eventualities that might be there.


  224. If I can pursue Mr Cohen's point. We did take some evidence from Lord Scott on this point. A refusal of a licence on general foreign policy grounds as opposed to the very specific purposes of this particular schedule, is that why 3(2) is there? 3(2) is a wide and sweeping right to introduce Orders outwith the purposes, albeit for a temporary period and subject to affirmative resolution. Is 3(2) designed for this type of decision?
  (Mr Byers) As you know, it is time limited, it is for 12 months subject to affirmative resolution. To be honest, it is for things that we do not foresee. The purposes we think are wide enough drawn to have the flexibility but there may be a view, there may be a legal opinion, that that is not the case, in which case we would need to come back to Parliament—

  225. It is a belt and braces catch-all provision?
  (Mr Byers) It is really, yes.

  226. In the Green Paper there was one other purpose that seems to have been dropped completely and that was "to avoid re-export or diversion of goods likely to prejudice purposes (a) to (i)", in other words relating to the end use issue. Why did that disappear from sight?
  (Mr Byers) We have looked very carefully at the whole area of end user requirements and the view that we have come to, although I have to say this is an area that I very much hope that we can consult on during this consultation period, is that the measures that we already have in place will be sufficient. There are a number of areas in terms of the consultation that we are going through that I think are very important and actually end use happens to be one of them. We have got to ensure, and I am very clear about this in my own mind, that we cannot allow people to abuse the system. Sometimes in terms of the way the end user system works we have to be absolutely vigilant that people are delivering on the commitments that they have given to us. There are different ways in which we can do that and as part of the consultation process I do hope that people will respond on the issue of end use, which perhaps is not flagged up as much in the consultation document as it should be, but I have indicated in comments I have made since publication that end use is one of those areas where we would welcome people's views.

Mr Cohen

  227. On these purposes, would you envisage the purposes applying to government to government transfers? Because I notice in the proposed Bill that there is not any provision to bind the crown as in some other Bills, like the International Criminal Court Bill. If it were there then the purposes would apply to government to government transfers, would that not be the case?
  (Mr Byers) We do not intend to change the provisions in relation to Crown immunity with regard to the provisions contained within the Bill.

  228. I hear what you are saying but that is worrying though. Would the purposes set out here apply to government to government transfers?
  (Mr Byers) My understanding would be that because of the Crown immunity provisions that would be outwith the provisions contained within the Bill.


  229. They would be subject to the spirit of the purposes. You would not transfer a government to government transfer that obviously offended the Schedule of purposes?
  (Mr Byers) It is a legalistic argument. One would hope within the spirit of what the Government has legislated for that the Government itself would adopt those principles in relation to its own dealings.

Dr Starkey

  230. Minister, can I just press you on this end use issue and ask you whether you have got any doubt, or your legal advisers have expressed any doubt, that you could withdraw a licence which had not been used in full where a breach of end use conditions had happened or where there had been a change of circumstances in the recipient country? I will cite a very specific example which is that at the current moment the Israeli armed forces are using weapons that would have been sold to them in the expectation that they would be used against other armed forces and they are actually using them against civilians. In that sort of case, if it were shown that UK components were being used in that way, is there any doubt in your mind or in the minds of your legal advisers that you could revoke a licence in those circumstances?
  (Mr Byers) Without going into details of an individual licence, because I am not on top of the particular details, we are very clear that people need to comply with end user requirements. We would want to take whatever appropriate action we can if clearly someone is failing to comply with the agreement they have entered into as part of the licence, and end use is part of that.

  231. Would that also cover a situation where permission had been given for combat weapons and then those combat weapons were used against civilians?
  (Mr Byers) That would depend on the nature of the end user agreement.

  232. So if it had not been foreseen at the time when the licence was granted, are you saying that there would be no way in which Britain in that hypothetical example could stop arms it had sold to such a government in fact being used against civilians? Is that what you are saying?
  (Mr Byers) I think there is little that can be done in that particular example. What we would clearly do is if there are further licences that we need to consider then those activities would be taken into account in determining our decision in relation to those licences.

  233. And you do not think there is any way in which this draft Bill could be amended so as to take account of that circumstance?
  (Mr Byers) I have to say, I think once the licence has been issued and the arms have been supplied in accordance with the licence then it becomes very difficult to take actions in relation to those particular arms. That is the practicality of it. Whether there is anything in terms of primary legislation that can change that, I have to say I cannot see what we can do. What we can do is in relation to any further applications that we might have from an applicant who has exported arms previously and this will be an issue that is taken into account. I think it is no secret that there are particular applications for particular countries that we scrutinise in far greater detail because of the sensitivities of a particular area or a particular region. In doing that we do take into account the way in which previous licences have been used.


  234. I think Dr Starkey was asking in a situation where a licence had been granted and had been partially fulfilled, where material had been sold and delivered under the licence but had not been completed and in that situation you either find there has been a breach of the end use, that some of this material has gone elsewhere and should not have, or indeed there has been a change of circumstance in the actual recipient country. We are unclear still as to whether the Government has a legal power to revoke the remainder of that licence. Could we just get clarity that that is the case?
  (Mr Byers) Let me think of a hypothetical situation which may help. If we grant a licence for a—

  235. Zimbabwe.
  (Mr Byers) Without mentioning a country. If we say for 100 rifles and 50 had been supplied and it then transpires that they are being used in a way which contravenes the provisions of the licence then we could revoke the licence at that stage and stop the remaining 50 being supplied under the licence. We can do that. There is a power to revoke the licence. The difficulty we often have, of course, is the arms are already there. If we have, say, a two stage licence then there is a power to revoke the licence if during the first stage there is clear evidence that the applicant is not complying with the provisions of the licence and then we can stop any further supplies being sent out.

Dr Starkey

  236. In a further hypothetical case that because the recipients seem to be entirely okay at the point of the initial sale and conditions were not actually placed limiting its use against bona fide targets and then it is used in a way in which the licence would not have been granted if they had asked for it in that way in the first place and it is only half way through, could you revoke it in those circumstances?
  (Mr Byers) It depends on the terms of the original licence. Without knowing the terms I would not be able to comment in detail. There is a power to revoke.

Mr Viggers

  237. There would be a much more interesting set of circumstances if a number of armoured personnel carriers had been supplied to an unnamed country and quite clearly it was abusing the end use certificate by using these for crowd control, and a separate completely different licence is applied for by another company wishing to export to that country. Would you then take account of the abuse of the end use certificate in the first supply of the scout cars and refuse a licence for other arms to be supplied by another company completely?
  (Mr Byers) We judge every single case on its own particular merits and we take into account the conduct of the country, the circumstances in which any particular licence or any arms being exported would be used for. I knew I should not have put a hypothetical example because there is a danger that we all have examples. I think all I can say, and this may not be terribly helpful, is that we would judge every case on its own merits. We would not simply say that it would definitely be refused, we would still look at and would take into account the circumstances surrounding the way in which arms had been used under previous licences. It would be a factor that would be taken into account.

   Mr Viggers: It is an example of where clause 3(2) might be useful.

Mr Berry

  238. I think a hypothetical example is actually very illuminating in relation to Phyllis Starkey's point because on a licence where half the equipment had been exported and half the equipment remained to be exported, whether there would then be a revocation of the licence would depend on the initial conditions of that licence. The issue then amounts to the conditions under which the licence was granted in the first place, which suggests to me that you would wish to place an enormous amount of attention on ensuring that the conditions for licences are drafted tightly and not otherwise. Is that your intention?
  (Mr Byers) I think there is merit there. It was particularly in relation to the end user provision that was being referred to. There are terms under which licences are approved and we expect the applicant to comply with those terms and if they fail to do so then there is a power of revocation.

Dr Godman

  239. The licence holder is well aware of the implications for his or her company of breaches of end use conditions. That is the case, is it not?
  (Mr Byers) Yes.

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