Export Control Bill

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Mr. Howarth: The Minister told us that before orders were laid, industry would be consulted. Is he saying that if the Government were minded to issue guidance they would consult with industry before issuing the definitive draft guidance, which would then be sent out formally to industry for consultation and be placed in the Library of the House? Would the guidance then be laid before Parliament once it had been more formally agreed? Is that how the Minister envisages it happening?

Nigel Griffiths: Yes. Consultation will take place not just with industry but with all parties and individuals who have an interest in export licensing. I can tell the hon. Gentleman and the Committee that the intention is to seek the views and opinions of interested parties as much as possible so as to better inform the framing of the guidance. However, there are certain circumstances in which it may be necessary to issue emergency guidance procedures in relation to a particular destination and that will limit the sort of consultation that takes place. However, as I said, it is deeply embedded in the Bill that the Secretary of State would have to account for such emergency guidance to the House after it had been issued. Such a time scale would make inappropriate the fuller consultation that the hon. Gentleman would like. I think that all hon. Members would accept that such consultation cannot take place in every circumstance.

Mr. Howarth: I am extremely grateful to the Minister—he has been very generous in giving way. However, we do not have the detail, so we have to press him to share with us his thoughts on how the detail of the Bill will be implemented. The hon. Member for Wolverhampton, South-West spoke about art exports. Let us say that, suddenly, there is a private sale of some fantastic work of art or sculpture, which is very important to the United Kingdom. Someone is selling it abroad, and there is an outcry, and the Government decide to invoke the powers in the Bill to prevent that work of art from being exported. I am speaking very slowly because it is important for the Minister to have plenty of time to understand my point. I hope that that is helpful. How will such crises—they do arise from time to time, and can engender public outrage—be dealt with? Our former colleague, Mr. Winston Churchill, planned to sell some family papers to the United States for a rather large sum. I believe that the Government stepped in to try to ensure that they remained in the United Kingdom. Could the Minister explain how such a scenario will be dealt with under the Bill?

Nigel Griffiths: It is very much intended that, as now, secondary legislation made under the Bill will specify which objects require an export licence. A range of open licences will remove the requirement to obtain an individual export licence from the Department for Culture, Media and Sport. Of course, the Bill itself provides for such emergencies. We are trying to ensure that any exporter is aware of the regulations governing exports and the general thrust of Government policy. On the steps that might be necessary to prevent the immediate export of a cultural object, the whole House will want to ensure that powers exist to allow my right hon. Friend the Secretary of State for Culture, Media and Sport to prevent such an object from leaving the country, pending a review, proper consideration and a decision. That is allowed for in legislation.

On clause 8 and the points raised by the hon. Member for Richmond Park in particular, I believe that, under the amendment, the consolidated national and European Union criteria and other existing published guidance would apply to licensing decisions—now it is my turn to go slowly—and new controls introduced under clauses 4 and 5, and that guidance would be issued accordingly. However, the amendment is not appropriate because clause 8(4) provides that the consolidated criteria and any existing published guidance that are

    ``capable of applying in relation to the exercise of functions under an order under section 1 or 2, shall''—

until withdrawn or varied—

    ``be treated as guidance under this section.''

Reference is made solely to section 1, covering export controls, and section 2, covering transport controls, because only those activities are controlled under the Import, Export and Customs Powers (Defence) Act 1939, which deals with export controls, and the European Community regulation, which deals with export and transfer controls.

The consolidated criteria and other published guidance have therefore been issued only in respect of export and technology transfers. They are the only functions in the Bill to which the guidance can directly apply once the legislation comes into force, and the guidance takes that into account. For example, the consolidated code, announced in October last year, refers throughout to export licences.

In the consultation document on the draft Bill, which was published in March, we announced our intention to introduce a licensing system under clause 5 for what is generally referred to as arms trafficking and brokering. I assure hon. Members that we will apply similar criteria to licensing decisions on trafficking and brokering to those that we apply to the export of arms. The EU code does not apply to trafficking and brokering. However, discussions in the EU on principles for national controls on arms brokerage have demonstrated that there is a consensus on introducing controls on those activities.

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Member states should assess licence applications case by case, against the criteria of the EU code of conduct and arms exports. We will apply similar criteria to the consolidated EU and national criteria to decisions on licence applications made under the controls. That provision will be introduced under clause 5. We expect to issue guidance under clause 8 to that effect. Clause 8(1) provides for guidance to be issued in relation to licensing or other functions conferred by clauses 1, 2, 4, 5 or 6. Whether we issue a separate guidance for trafficking and brokering that is modelled on the consolidated criteria, or revise the consolidated criteria to take account of trafficking and brokering, has yet to be decided.

Clause 4 deals with technical assistance and hon. Members will be aware that the only controls that we have proposed to introduce under that power relate to activities for which we would not expect to issue a licence. Those would be activities that the provider knows—or is informed by the Government—are intended to take place in connection with weapons of mass destruction or a related missile programme. Nor would we expect to issue a licence if controls on the provision of technical assistance to embargoed destinations were introduced. We propose to state in guidance the situations in which the Government would not expect to grant a licence for a particular activity or to a particular destination.

Amendment No. 20 would empower the Secretary of State to issue guidance about reasons that may be regarded as justifying a decision taken in the exercise of licensing or other functions. I believe that the intention of the hon. Member for Twickenham is to give the Secretary of State the power to issue guidance on the reasons that justify a licensing decision that has already been taken. The clause provides that the Government can publish guidance about matters to be taken into account and the reasons that might justify licensing decisions, before decisions are taken. The Government therefore do that already, as seen in the export of nuclear-related dual-use items to India and Pakistan.

The amendment may allow the Government to change existing guidance without publishing the changes until after a licence has been refused. The purpose of the clause is not to provide for the Government to issue guidance on the reasons justifying a decision after it has been taken. Existing arrangements ensure that any company whose licence application is refused is given reasons for the Government's decision. Those arrangements are intended to continue after the Bill has been introduced. Parliament has a full opportunity to undertake retrospective scrutiny of the Government's operation of the export licensing regime, for example, through scrutiny of the annual report. For those reasons, I consider the amendment to be unsuitable, and unnecessary for the purpose of the clause. I hope that the hon. Gentleman agrees to withdraw it and other amendments in the light of my explanation.

Dr. Cable: I thank the Committee for producing the best exchange that we have so far had on the Bill. It vindicates what was said in the first sitting on Tuesday. Giving hon. Members time to reflect on the Bill has produced a higher quality of scrutiny and debate, evidence of which we have seen this morning.

I will first deal with the criticism that the hon. Member for Derby, North (Mr. Laxton) perceived in my introductory remarks. I had no intention of criticising him personally. I recognise that he is a distinguished member of a Select Committee. There are two other Select Committee members here: the Member for Milton Keynes, South-West and my hon. Friend the Member for Richmond Park. They have no doubt accumulated considerable expertise. However, unless I am mistaken in my understanding of the membership, not one member of this Committee—on the Front Bench or Back Bench—sits on the Quadripartite Committee. We have all had to read its reports to understand its deliberations.

Dr. Starkey: I understand that my hon. Friend the Member for Derby, North is a member of the Quadripartite Committee, and I was certainly a member.

Dr. Cable: I apologise to the two hon. Members. However, the majority of us have not been in that privileged position and we have had to master not just the text of the reports, but the evidence. In addition, we have had to master the Scott report and most of us were not Members of the House when the Scott report was debated. There is a substantial body of background documentation and I am simply making the elementary point that, given time for reflection, we foresee problems with the Bill that may not be immediately apparent. I did not intend to make a personal criticism and I respect the hon. Members' expertise on the matter.

Secondly, we may going beyond party political points about the way in which future Governments might deal with the matter. The Scott report was produced under the last Conservative Government and the Conservative spokesman made the point very well that we do not know how a future Conservative Government would deal with it. With the period involved, there may be Liberal Democrat Ministers and although we like to think of ourselves as being saintly and idealistic, I cannot speak for future generations. We must test the boundaries and ask how the Bill might be used. Our point of reference could be the hon. Member for Aldershot, who is a valuable member of the Committee and is a convincing devil's advocate. Perhaps we should apply the Aldershot question. If we shut our eyes and try to imagine the hon. Gentleman as the Secretary of State for Trade and Industry, how would the Bill then be interpreted? That would be a useful discipline. The hon. Gentleman is a creative and intelligent man and I am sure that he could interpret the Bill differently from the way in which the Minister interprets it.

The Minister said that the amendments were not helpful, and various responses have been given. First, he said that he does not believe in a one-size-fits-all approach. If he read the amendments and listened to what I have said, he would realise that we are proceeding in the opposite direction. We are suggesting that there is currently a one-size-fits-all approach to guidance and we are offering two tracks. We want to create more varied treatment reflecting the different nature of the material that is put before Ministers, so the Minister's point is wholly irrelevant.

The hon. Member for Wolverhampton, South-West made several interventions reminding us that the Bill covers not just guns, but works of art and so on. His questions were valuable and deserve a proper answer. He asked whether the measures that we have suggested would fetter ministerial power. The hon. Member for Aldershot has already attempted to pose a hypothetical case and I shall pose another.

If a valuable work of art was under consideration, the words ``export criteria'' would not apply because it would be a single case. However, I have had 10 minutes to think of a hypothetical case. If a cow pickled in formaldehyde was thought to be a work of art and the Minister of the day wanted to preserve it for the nation, a change in export criteria might be required.

 
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