Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 180 - 195)



  180. Yes.
  (Lord Scott of Foscote) When I wrote the report I asked myself whether I should recommend deemed refusals or deemed grants. I thought that deemed grants would be a greater spur than deemed refusals.

  181. Better than nothing.
  (Lord Scott of Foscote) You can do it by deemed refusals and then have an appeal. Then you would need a proper appeals procedure, not just the departmental officers who had been sitting on the original application then constituting themselves as an Appellate Tribunal.


  182. Your own report suggested it should remain in the hands of senior officials but who were not the same officials dealing with the thing.
  (Lord Scott of Foscote) That is right. I am not sure that proposal in my report would still be satisfactory after the incorporation of the European Treaty on Human Rights because the independence of the Appellate Tribunal might be called into question.


  183. There are two other issues which have arisen and will be quite central to the debate. One is on end use and the other is enforcement, which includes the possibility of licensed production abroad.
  (Lord Scott of Foscote) Yes.

Mr Berry

  184. The question on end use controls is straight forward. It is that based on your study of the Iraq cases, can end use controls be strengthened in law because clearly there is great concern about the end use monitoring?
  (Lord Scott of Foscote) Can they be strengthened in law?

  185. Yes.
  (Lord Scott of Foscote) I am not sure. Certainly the licensing authorities—DTI, MoD—should ask the most searching questions about end use and should not dream of granting a licence unless the questions are properly and fully answered. If they are answered truthfully and fully then there ought to be all the information available about end use. The possibility that the purchaser is going to do with the machines or with the goods something that if known in advance would have led to the refusal of the licence is often going to be something which you cannot control. I do not think one could make the exporter responsible for some diversionary activity of the purchaser that he, the exporter, genuinely did not know about or had any reason to suspect would happen. I think in cases of this sort, where there is reason to fear in a general way diversion from the particular consignee or from the country of the consignee, the licensing authority will need to rely on intelligence as to what might happen to the goods and take that into account in deciding whether or not to grant the licence, whether or not to take the risk.

  186. Essentially the end use monitoring which would take place subsequently, should that take place, is an administrative matter but you cannot anticipate any measures in law? It is clearly a concern.
  (Lord Scott of Foscote) The end use monitoring could lead to different decisions being taken on subsequent applications. I do not think the end use monitoring could be used in order to prosecute the exporter for what had actually happened to the goods unless you could show that it was something that he knew, or ought to have known would happen, or he had given some false answer in his answers for the purpose of getting a licence.


  187. The Bill proposes new offences in two other areas. I do not know how they connect with your report but anyway, irrespective, may I prompt you to give us your advice. The first is the whole area of brokering and the second is the growth of licensed production abroad.
  (Lord Scott of Foscote) Yes.

  188. There is a lengthy discussion on pages 19 and 20 of the consultation document about the whole business about how you can further control licensed production. Have you any thoughts on those two key additional areas? The Bill goes beyond Scott, if I could say, in addressing the issues.
  (Lord Scott of Foscote) Yes, it does. I think controls of that sort are a very valuable addition to the armoury of controls which Government has. I am sure that there are a number of cases where Government will be glad to use those controls in order to prevent trafficking, brokering, production abroad in circumstances where the goods being produced or being trafficked would not have been the subject of an export licence to the country concerned if the goods had been in this country. If I may say, I support the introduction into the Bill of controls in those respects. How they are going to work in practice is another matter. I think there has probably got to be a good deal of work on the infrastructure of enforcement which at the moment one cannot see in the Bill.

  189. I wonder if you or Ms Baxendale have any views about the options that are proposed in paragraph 77 on licence production? There are two.
  (Lord Scott of Foscote) Paragraph 77?

  190. Page 20. I just wondered if either of you had any reflections on these options? This is new territory from a legislative point of view.
  (Lord Scott of Foscote) Yes. I do not see a great deal of difference between the two options. Either seems to me to be a good idea. To what extent they will be effective, again it is a matter of a certain amount of doubt. What would be the remedy for a breach? This comes back to a point we have already discussed. You would come back to a situation in which it would be the overseas company that would have broken its undertaking. You could not prosecute effectively in this country that overseas entity, particularly if it was the Government of the country that had been responsible for it. You could store up the knowledge for the purpose of dealing appropriately with any future licence applications for export to the particular country involved but beyond that I am not sure what remedy there would be. I do not believe we will be seeing in this country any claims for damages for breach of undertaking in this sort of area.

  191. Finally, on enforcement. I just wondered, given also the whole extension of legislation to intangibles and the transfer of information by all means, by e.mail, by fax, by all the modern means of transferring information, it multiplies the problems of enforcement in all sorts of ways. Do you think the enforcement authorities are likely to say "Yes, Parliament has demanded this type of power on brokering on these issues and therefore we need more power. More power to intercept, more power to intervene, to get to and get at this information" and there could be a really interesting conflict between civil liberties and enforcement in these provisions?
  (Lord Scott of Foscote) I see that, particularly bearing in mind that one is speaking not only of things done in this country but also things done in foreign countries. I do not know that I have ever looked at it. I do not know whether Ms Baxendale knows what sorts of powers are needed for the purpose of authorising the intelligence agencies to carry out surveillance operations in foreign countries. There probably are not any empowering provisions one needs for that, they just do it under their general remit.

  192. I am thinking in the UK context.
  (Lord Scott of Foscote) In the UK context I think there probably are human rights implications.

  193. Ms Baxendale?
  (Ms Baxendale) I would have thought that there must be and it would be likely that the Government would seek further powers. I do not think that detracts from the benefit of setting up the offences but I think it is going to be very difficult. It will be a balancing exercise between protecting the relevant human rights. That ties back into how there seem to be more human rights implications under the Human Rights Act than perhaps had been initially envisaged in relation to all this.
  (Lord Scott of Foscote) There are very, very stringent controls, as I am sure you will know, on Government's power to authorise, for example, phone tapping, interception of that kind in this country. If there are going to be any extra powers Government asks for or gets given in this connection, I am sure they will be subject to similar sorts of safeguards.

  194. Thank you very much indeed. I am so grateful to you. Thank you for coming along.
  (Lord Scott of Foscote) Thank you. It has been very interesting.

  195. The Bill will arrive with you some time soon. Thank you very much indeed. I will, if I may, develop our case on prior parliamentary scrutiny to retrieve the situation.
  (Lord Scott of Foscote) Yes.

  Chairman: Thank you for coming.

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