Negative or affirmative procedure
26. The principal issue is the nature of parliamentary
procedure to be applied to Orders under the new legislation. The
1996 Green Paper stated the Government's initial view that new
legislation should allow for formal parliamentary consideration
of rules and orders made under it, as well as advancing the rather
exaggerated claim that "in practice Parliament regularly
examines export control legislation".
27. The July 1998 White Paper set out the Government's
preference for negative procedure.
The Trade and Industry Committee commented in its December 1998
Report on the reasons advanced by the Government in the July 1998
White Paper for its preference for negative procedure rather than
the modified affirmative procedure suggested by Scott. The principal
argument was that the number of such orders would "impose
a significant burden on parliamentary time". This
argument did not persuade the Trade and Industry Select Committee.
The White Paper estimated some six EGCOs a year. That compares
with 180 instruments subject to affirmative procedure agreed by
the House in Session 1999-2000.
The Government also described the EGCOs as largely uncontroversial
and technical. If that were clearly so, it would indeed
be an argument against subjecting them to a procedure requiring
28. The Trade and Industry Committee was persuaded
that most changes in EGCOs were indeed uncontroversial, and that
the modified affirmative procedure "would be likely to lead
to further very brief and pointless meetings of Delegated Legislation
Committees in order to debate wholly technical and uncontroversial
measures". The July 1998 White Paper had stated that "negative
procedure would allow MPs the opportunity to debate and vote on
EGCO amendments where they considered this appropriate...".
It is in fact up to the Government to decide whether to provide
such an opportunity for a debate and vote. The Committee therefore
concluded that negative procedure would be acceptable, subject
to drafts being made available to the Committee in advance of
being made, and to an undertaking to find time for a debate if
at least six Members so desired.
29. Cm 5091 sets out again the Government's preference
for the negative procedure, on the grounds that it matches "the
frequent, usually technical and uncontroversial nature of the
It records that "the Trade and Industry Committee commented
that "the negative procedure for orders laid under the new
legislation will be found acceptable" (HC 65, recommendation
(c))." This partial quotation is presumably a genuine but
30. In evidence to us, Lord Scott told us that he
would have preferred affirmative resolution procedure as he had
recommended, but that he had been neither surprised nor particularly
disappointed that the Government should have opted for negative
The Secretary of State told us that he was confident that if the
House felt strongly about an Order a way would be found of dealing
He also confirmed that, subject to time constraints, he would
be prepared for drafts of Orders to be made under the Bill to
be shown to this Committee.
31. We have examined the eight Orders laid since
December 1999. They do in some cases raise issues beyond the merely
- the prohibition of export of television broadcasting
and news gathering equipment to Yugoslavia in January 2000 and
the lifting of the ban in March 2001;
- changes in the list of countries to which arms
in transit through the United Kingdom may not be exported without
- the exemption from Military List controls of
armoured vehicles designed for the transport of valuables or for
flails for mine clearance, and the extension of controls to all
wheel drive armoured vehicles rather than just utility vehicles;
- the extension of controls on individual handcuffs;
- the exemption from controls of "cartridges
specially designed for signalling, bird scaring or lighting of
gas flares at oil wells"
Some of the technical changes are not and probably
could not be fully explained in the Explanatory Notes. Some require
expert knowledge of chemistry. They are by and large matters best
exposed in evidence to a Committee already seized of the general
context, which could then decide if they required debate and determination
in the House or a debating committee forum. They would only rarely
justify debate. We recommend that Orders under the Act should
first be exposed in draft and in confidence to the Quadripartite
Committee and, if then made and laid, the Government should undertake
to use their best endeavours to find time for a debate if the
Committee so recommended.
Prior parliamentary scrutiny
32. In our July 2000 and March 2001 Reports we have
set out our detailed and refined proposals for prior parliamentary
scrutiny of export licence applications. We await the Government's
response to the latest Report. We do not intend to rehearse the
arguments again. We raised the issue with the Secretary of State,
in the context of the proposed legislation. In a very helpful
series of answers, he confirmed that our revised proposals of
March 2001 were being given detailed consideration, although no
decision had been reached, and he accepted that we had made genuine
efforts to meet the concerns raised by Ministers in their response
of December 2000.
We welcome the positive tone of the Secretary of State's answers
on prior parliamentary scrutiny.
33. We are concerned to ensure that the new draft
Bill should not make the introduction of such scrutiny more difficult.
In December 2000 the Government Response to our July 2000 Report
stated that "Involvement of the Committees in the taking
of decisions under the existing legislative powers is in any event
problematic, in that an extra element would be introduced into
the process. This might generate doubt as to whether the decision
had been taken properly in accordance with the powers conferred
We have made it clear in our March 2001 Report that we regarded
this objection as spurious. We were pleased to have the Secretary
of State's assurance that the proposals for parliamentary prior
scrutiny we had made in our March 2001 report could indeed be
introduced without primary legislation.
We continue to recommend strongly that they should be so introduced.
Annual Reports: Clause 8
34. We have commented at length in our past Reports
on the Government's Annual Reports on Strategic Export Controls.
Cm 5091 states that "they have provided Parliament with the
information needed to carry out regular, thorough scrutiny of
export licensing decisions made by the Government".
They are of course open to improvement. It would for example be
welcome if they were to appear closer to the end of the year to
which they relate. We set out in our first Report a number of
desirable changes. The Government accepted some but not others.
35. Clause 8 of the Bill seeks to place the annual
report on a statutory basis, apparently in response to a suggestion
The Clause obliges the Secretary of State to lay a copy of the
Report before Parliament "as soon as practicable after the
end of 2002 and each subsequent year". The Annual Report
is at present published by the FCO as a booklet, without reference
or series number. There have been complaints that they are not
readily accessible, since they are not charged for. They do not
seem to be distributed by the Stationery Office. The consequences
of putting the Report on a statutory basis are apparently slight.
Although we see no harm in putting the Annual Report on a statutory
basis, it would be regrettable if it were to oblige FCO to charge
for copies; if it had any unintended consequences for its availability;
or if it were to lead to any further delays in publication.
35 Scott Report, C1.66- 1.117 Back
C 1.78, 1.82 Back
Deb, 16 December 1999, col 239w Back
3349, 2.6.1 Back
Returns, session 1999-2000, HC 100 Back
5091, 2.1.5 Back
4872, page 11 Back
5091, page 8, para 23 Back
para 24 Back