Select Committee on International Development Minutes of Evidence

Examination of Witness (Questions 200 - 219)



  200. Why not do the whole job properly rather than leave the 1939 Act to deal with the import side of it?
  (Mr Byers) I think it still does what it was originally intended to achieve in 1939 as far as the import side is concerned, particularly given that most of the provisions now affecting imports will be covered by measures in relation to the European Union where we do have the opportunity in this House to scrutinise them through that particular vehicle. That is quite a practical reason. I think the pressure also in terms of, if you like, the mischief that we were trying to remedy from the 1939 Act was very much on the export side, and that is really what we have been concentrating on. I think had we also wanted to cover the import side then I think there may have been a further delay. Secondly, being very frank with the Committee, it would have been a far bigger Bill as a result and that may well have meant difficulties in terms of securing parliamentary time. It has not been easy to get parliamentary time. We still need to make sure it is in there not just as a draft but actually in the proper form for a Queen's Speech hopefully in the near future and to secure parliamentary time. That is easier to do if a Bill is shorter and more focused. I think we have got a far better chance of achieving parliamentary time with an Export Controls Bill than perhaps we would have had we introduced the import elements as well. That is a very practical and political reason why. My own view, and I would be interested to hear Members of the Committee, is I do not think we are missing an awful lot, to be honest, by not covering the import side. It would have been a good tidying up operation but in terms of what is achieved in practice—

  201. Except that there isn't actually parliamentary oversight of import controls in the 1939 Act. Your defence on that is apparently that it is mostly now European legislation but the very thing that Scott condemned on the export side will actually still apply to the import control side of the 1939 Act.
  (Mr Byers) I think there are a number of areas where, on the import side in this House, through the way in which we deal with European Union matters, there would be a degree of scrutiny as I understand it.

  202. Before we get on to the substance of this Bill can I deal with the culture side of the Bill because although our four Committees are not charged with this responsibility, it is in the Bill and, therefore, I will ask about it for completeness' sake. Is the passage of the Bill a prerequisite for UK accession to the 1970 UNESCO Convention on Cultural Property? Will it help to speed up the process and improve the UK's standing?
  (Mr Byers) As you know, Chairman, this is a matter Chris Smith leads on from the Department of Culture, Media and Sport. I have spoken to the Secretary of State about this. His view is, and it is also the view of officials, it is not essential for accession but it will help. It will be very useful to have this on side, as it were, in terms of accession. Although not a prerequisite it will be something that will be very helpful.

  203. There is one other issue that is not the responsibility of our four Committees and that is the issue of export of bovine offal, the agricultural side of the export thing. Why is the public health issue not included in the Schedule of purposes?
  (Mr Byers) There is a very good answer to that but I cannot immediately find it, Chairman. I have got an answer somewhere. If the Committee will agree I can certainly do you a note on it.

  204. It will have to be an urgent one.
  (Mr Byers) It will.

  205. We have to report on this within the week.
  (Mr Byers) It may be one of those occasions where a note will be passed to me and before the end of the proceedings I can give you an answer, Chairman.

  206. That will be very useful.
  (Mr Byers) Bovine offal, I know, is of great interest to a lot of people.

  Chairman: Let us get down to the issues which do fall very much within our four Committees. Parliamentary prior scrutiny has been very much a part of our submissions to Ministers in reports from the four Committees. Sir John, would you like to lead.

Sir John Stanley

  207. Secretary of State, you are well aware of the degree of focus which these four Committees have placed on this key issue of policy. You will be aware that amongst these four Committees you have in excess of 40 backbench Members of Parliament drawn from all three major parties, in other words right across the political spectrum, who after months of detailed examination and after visits to two countries which operate a system of prior parliamentary scrutiny—Sweden and the United States—came to a unanimous conclusion that it was entirely possible and, indeed, highly desirable to establish within clearly defined parameters a prior parliamentary scrutiny system for this country and for this Parliament. You will not be surprised to know that we were considerably disappointed by the initial negative response on this particular point that we received from the four Secretaries of State. But we were encouraged when the Foreign Secretary came in front of us, speaking, of course, on behalf of the four Secretaries of State and in his evidence to us on 30 January at paragraph 47 he said that "...if the Committees wish to put to me a refined proposal I will, of course, consult with my colleagues." Well, the four Committees, again unanimously, submitted a refined proposal to the four Secretaries of State in March this year, and that of course is now before you. We believe we have met, in our views totally cogently, such objections as have been put forward against this proposal. We have met the issue of delay, we have met the issue of confidentiality, we have met the issue of legality, which we felt was a fairly specious issue but we responded on that point as well. We are not inviting you today to anticipate the Government's response, because that obviously will have to take place in the normal course of events on behalf of the four Secretaries of State. The question I would like to put to you, and the assurance that I would like to seek from you is this: given the fact that the Foreign Secretary has been before us, has asked us for a refined proposal on which he is going to consult with the three other Secretaries of State, do we have your assurance that the Government is prepared to keep an open mind on this issue and to do so in particular in the context of this Bill? Because I do remind you, Secretary of State, that when the Government made its initial response it specifically pointed to the possibility of this Bill being a vehicle within which the issue of parliamentary scrutiny in particular, in our view prior parliamentary scrutiny, might be addressed. Just for the record, you said in your response to our first report: "The Government would also like to point out that when the new primary export legislation is introduced as proposed in the 1998 White Paper this will provide Parliament with the opportunity to debate the whole field of export controls and licensing powers including delegation of powers and the form of parliamentary scrutiny". So against that background do we have your, I hope, clear assurance that the Government's mind is still open on the issue of prior parliamentary scrutiny and that the Government in principle is willing to entertain this issue being incorporated in legislative form or in policy form when this Bill comes before Parliament?
  (Mr Byers) I think, Sir John, that it would be foolish of any Government to ignore the unanimous views of 40 Members of Parliament from across the political spectrum. I have been following with great interest the debates that you have been having within your respective committees and coming together on this particular issue. Indeed, I had a very informative weekend reading the background papers. What is very instructive and very helpful to the Government is the way in which the Joint Committee has been prepared to tailor its own response to meet the concerns that have been expressed over a period of time. I think the proposals that came from the Joint Committee on 14 March seek to address many of the concerns that have been raised. Indeed, I have spoken informally to your Chairman about these particular matters. The Government is considering how we respond to the proposals which came on 14 March and it would be wrong for me today to pre-empt what the Government response might be. What I can say is that the model contained within the Joint Committee's proposals on 14 March could be introduced without primary legislation. In a sense, although the Bill is here, we do not actually need the Bill to agree amongst ourselves effectively how we intend to adopt these particular matters. I have to say—if I can say by way of background—I have found it extremely helpful to know that my decisions when they are taken in these areas are going to be subject to parliamentary scrutiny because when I sit in the evening looking at the export licences and applications for them it is, I think, very helpful to know. It does not make it always easy to come to the decisions but it is important that the Secretary of State for Trade and Industry, who is the Secretary of State who in the end approves the licence or disapproves the licence, knows that those decisions will be subject to approval by Members of this House. That does act, I think, as an important element in terms of the decision making process. I think we have achieved a lot. I think the annual reports and so on have introduced a far greater degree of transparency. We can now be held to account for the decisions that we have taken. Now I know the Committee now wants to say "We should be involved before you take those decisions so that our views can be had regard to and so that we can see the decisions and the reasons behind them before a decision is ultimately taken". The Government is going to consider the views expressed on 14 March. We have not arrived at a conclusion yet. There are many issues that we will obviously want to take into account but I am conscious that the Committee in a real spirit of trying to arrive at something has tried genuinely to meet the concerns that have been expressed by the Government over recent months. Now, I cannot say any more than that today, I am afraid, but what I can say is that it is being given effective and detailed consideration. We have not arrived at a conclusion yet.

  208. The Government's mind is open, not closed, on prior parliamentary scrutiny?
  (Mr Byers) To be honest, we would not be looking at it if it was closed. We are still looking at it because we want to respond as positively as we can to the very genuine proposals which have been put forward. Whether we can meet them or not it would be wrong for me to say, but what I can say is that they are being given detailed consideration. You will be aware of the concerns the Government has got. We are looking to see if in the way in which the Joint Committee put forward their proposals on 14 March those concerns are actually met.

  209. The Government's mind is open?
  (Mr Byers) We have not reached a decision yet.

Mr Worthington

  210. Could I add to what Sir John was saying. As you know, Lord Scott has preceded you in this room. One of the things he said was that time had moved on since he did his report and he doubted now, with the incorporation of ECHR and other developments into British law, whether the Department could get away without an appeal mechanism. What struck me was that this might be another powerful case for prior scrutiny if it could be demonstrated that decisions had not just gone through your Department but had been subject to scrutiny by parliamentarians as well. I have two questions. One, what do you think about the specific point about scrutiny and the other is if I have got Lord Scott's comments correctly there may need to be built in an appeal mechanism?
  (Mr Byers) I am not aware of the evidence that Lord Scott gave earlier this afternoon. There is at the moment a mechanism for those applicants where we have refused a licence to appeal against those decisions, so there is a mechanism there that we have in place. I do not know whether that was the type of thing—

  211. He just said one of the weaknesses of that is that it is an appeal within the Department.
  (Mr Byers) Yes.

  212. Perhaps different officials looking at it but that might not be seen as sufficiently detached to meet higher standards of justice.
  (Mr Byers) That is the second point I think, whether it now complies with the provisions that we have introduced more generally. That is clearly something we will want to look at. It is not something which certainly has been raised so far. If in evidence it was an issue that has been raised clearly we want to give regard to it. Whether the introduction of prior parliamentary scrutiny will be the way to tackle it, if there is a problem identified, I honestly do not know the answer to that. I think in terms of the work we are doing within Government at the moment in preparing a response to the proposals of 14 March, this is something I would be more prepared to look at.

Dr Godman

  213. Just following up on this, Minister, Sir John was pressing you on the issue of the openness of the Government's collective mind. On this question of the appeals procedure, the present one, and I support what Tony Worthington had to say about it, you must have some concerns yourself about it. Do you have any ideas concerning the modification of that system?
  (Mr Byers) All systems can be improved. The way in which the appeal system works at the moment is very much a system whereby someone who has had an application which has been refused is really always given an opportunity to have that reconsidered and to submit more evidence. Perhaps if they feel they have not been able to provide the full picture then they are able to do that. I think it is a system that works reasonably well. It can be improved. I worry about the delay that is built in as a result of that. In the end, we have to take decisions based on the information which is available to us. Often we have to say that the appeal is going to be unsuccessful because they have not satisfied us in terms of the evidence that they have been able to bring forward.

  214. Am I not right in thinking that one appeal led to the intervention of the UN Committee?
  (Mr Byers) You are right but there is some debate about the nature of that intervention as the Committee will be aware.

  215. Sure. Does that not mean there is something wrong with the present system, the present appeals procedure?
  (Mr Byers) People may disagree with the outcome, that is different from saying the process is wrong. This is the important thing about being accountable. People, as is happening now, can say "We do not agree with you granting that appeal", I think that is quite legitimate. Whether or not that shows the process is flawed, that may be a different issue perhaps.


  216. I do not think we can pursue prior scrutiny any further at this stage. Before we just go on to the other question of Parliamentary control over Orders, on the prior parliamentary scrutiny you were right, Secretary of State, when you said there is actually no need for it to be written in legislation, there can be an agreement between the Government and the four Committees to introduce a procedure of prior scrutiny. There was one legislative point when in your December observations it was implied in one of your observations that there would be the legal difficulty of seeking the advice of the Committees. It was one of your points, we thought it was one of your weakest points but it was one. If there was any doubt, if there was a doubt of the kind proposed in December, maybe at least this Bill ought to look at removing any such doubt that, in fact, the Secretary of State would be free to seek the advice from Parliament in operating under the Orders concerned?
  (Mr Byers) I think, perhaps, we recognised also it was one of the weakest parts of our response, Chairman. We are now very much of the view, in terms of the model put forward on March 14th, that primary legislation would not be necessary. Clearly what we would have to do, if there is an agreement that there needs to be some element of prior parliamentary scrutiny then I would expect that the Secretary of State in the Second Reading debate will make it very clear that the Bill, as it presently stands, would still allow a degree of prior parliamentary scrutiny if that is the way the Government agrees we should go.

  Chairman: The major point was about Parliamentary control over Orders and there are provisions in the Bill and we asked Lord Scott about that.

Mr Viggers

  217. It was a substantial point of the Scott Report that there was an absence of Parliamentary scrutiny of Orders made under the 1939 Act, and the Trade and Industry Committee has considered this matter in its report in December 1998. It took the view that the Scott Report recommendation, which was that there should be a form of modified affirmative procedure in Parliament was the one it would prefer. Can you please take us through the Government's response to the Trade and Industry Committee view and how you have come to the conclusion which is now in the White Paper?
  (Mr Byers) I hope that we have been able to respond positively to the issues that Lord Justice Scott, as he then was, raised in his report. I think it is under Clause 3 Subsection 2 which makes it clear that any Orders under that clause will be subject to parliamentary approval—

  Chairman: No, 3(2) is not the point Mr Vigger's is on. 3(2) is about those Orders which fall outside the Schedule of purposes. I think Mr Viggers is on the general provision. We will come to 3(2) a little later. I am right in believing, I think, 3(2) is not quite the same issue. Peter, will you just repeat the question.

  Mr Viggers: Yes. The closest point of reference is paragraph 21 of the Export Control White Paper. What it says is that the Government accepts the principle of a negative procedure. It does not accept the Scott proposal of a modified affirmative procedure. I would like to start from the point of view of Scott's recommendation that there should be a modified affirmative procedure. The Scott Committee explicitly proposed—I am quoting now from the Trade and Industry's Committee report of December 1998—a form of modified affirmative procedures whereby an instrument comes into force immediately but lapses after a specified period, if not explicitly approved. This relates to the Export of Goods Control Orders and Orders similar to that.


  218. Why have you gone down the negative procedure route as opposed to the affirmative one?
  (Mr Byers) That is a very simple way of putting it. I am grateful, Chairman. My own view is that provided there is the opportunity for Parliament to deal with these matters then there will be an opportunity if the House feels strongly about a matter then certainly in my experience, whether it is negative or affirmative, then the way can be found for the matter to be dealt with. That is the way in practice that these things happen.

Mr Viggers

  219. Yes, the affirmative versus negative argument of course is a well rehearsed one. The Trade and Industry Committee did say in December 1998 "We are not unduly persuaded by the argument that the form of affirmative scrutiny proposed in the Scott Report would be unduly burdensome on Parliament...". So, we, as a Quadripartite Committee, would start from that point, but if you have rejected that modified affirmative route and are proposing to us the negative resolution route, are you prepared to say that the Export of Goods Control Orders will be shown to this Committee in draft and assure us that a prayer against an Order will be debated if six Members seek one?
  (Mr Byers) My inclination is always to be as open and helpful to the Committee as I possibly can be. I think what I would be prepared to indicate today is that providing we do not have problems with time constraints, which is always a bit of a concern I do have here, because there are some areas where we do have difficulties but, subject to that provision, whenever time allows then, yes, I would be prepared for my Department to show Orders made under the Bill in draft to the Committee. We can agree to that.

   Mr Viggers: Only something like six Orders a year, we would maintain this would not destroy the system. The point I am pressing is that paragraph 21 of the White Paper does refer to the Trade and Industry Committee recommendation but it does not specifically give the undertaking I understand the Minister to have given to us. On that basis I am content to move on.

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