INCREASING TRANSPARENCY AND ACCOUNTABILITY: COMPLEMENTARY MEASURES

III.   Complementary measures

  As outlined above, although an Annual Report is an important aspect of transparency more is required. This section outlines measures that would provide for a comprehensive system of parliamentary and public scrutiny over arms exports. This would ensure that in the area of arms exports decision-making, governments would have nothing to hide.

1.   Parliamentary debate on the Annual Report

  Whilst acknowledging that the Annual Report is a significant step forward, BASIC believes that public and parliamentary scrutiny of the report should be increased. It is worth noting that this long awaited and long overdue report was released the day after NATO's bombing campaign in the Former Yugoslavia began. With media and parliamentary attention firmly focused on the crisis in the Balkans, the release of this important report was overlooked and was therefore not subject to the level of scrutiny it deserved.

—  Recommendation: An annual debate should be held before a full session of Parliament on the substance of the Annual Report and on the implications for UK export policy. This should be established practice every time subsequent reports are published.

2.   Prior parliamentary scrutiny

        While the Annual Report is a very important way of assessing Government policy against Government practice, the fact that it is a retrospective measure severely limits its usefulness. Although a significant step towards transparency, an Annual Report is no substitute for prior public and parliamentary scrutiny. BASIC believes that both the public and parliamentarians have the right to scrutinise arms sales, before they are approved, in order to assess prosposed sales against export criteria as defined in the EU Code of Conduct on Arms Exports.

  Prior parliamentary scrutiny in arms export licensing would facilitate a more judicious export policy and practice, while at the same time, enabling Parliament to conduct a more informed appraisal of UK defence and security interests. This should become established parliamentary convention not only for reasons of democracy and accountability, but also because of the growing international norms relating to transparency in the transfer of arms.

—  Recommendation: Concerned parliamentarians have a right to scrutinise controversial deals before licences are granted. The UK Government should therefore produce a register of all licences for strategic exports applied for 30 days in advance of the granting of licences. This rolling register should contain details of where a prospective export has been refused by another country and where the UK intends to undercut this denial. This register should set before a full session of parliament to enable it to measure proposed exports against the critieria set out in the EU Code of Conduct on Arms Exports.

—  Recommendations: At a minimum, all applications to sensitive destinations to be set before a parliamentary committee for their scrutiny and debate. BASIC proposes that such a committee should be made up of representatives from Defence, Foreign Affairs, International Development and Trade and Industry Committees as each has clear interests in arms exports. This special committee should be empowered to take evidence from Ministers and to produce reports on arms sales to particular regions; the committee chairman should also have the right to call for a parliamentary debate on proposed sales.

 

BOX 5: PRIOR PARLIAMENTARY SCRUTINY: THE UNITED STATES AND SWEDEN   Prior parliamentary scrutiny already exists in the United States and Sweden, which could be used as a starting point for developing a similar model in the UK. The United States and Sweden has a system whereby parliament is notified of arms exports. Notification can be executed in such a way as to obscure the identify of the exporting company thereby significantly reducing concerns of commercial confidentiality. —  The United States: Pre-notification of all planned major defence exports (both government and commercial) over $14 million is given to the Senate Foreign Relations Committee and the Speaker of the House of Representatives. Committee members may raise objections to individual contracts. Then Congress has 30 calendar days (15 if the recipient is a NATO country or Australia, Japan or New Zealand) to consider it. The contract will be approved unless a joint resolution is adopted objecting to the sale. Pre-notification applies for transfers over a certain dollar value; defence articles or services of US $50 million or more and major defence equipment of US $14 million or more. Congress can ask the President for a report that contains a detailed description of the items to be transfered, and their capabilities. This report can include an evaluation of the State Department and the Defense Department regarding the impact on arms races, human rights, terrorism, regional instability, ongoing arms control negotiations. It can also outline why a country needs weapons and how it intends to use them. The President must also inform Congress of any plans to ship excess defence articles (surplus equipment) from US stocks. Congress then has 30 days to review these proposed shipments.   However it should be noted that, although the US system of pre-notification is a step in the right direction, it falls short of the comprehensive system required. The main short falling is the threshold of US $14 million. Many of the most sensitive and controversial of all arms sales are transfers of small arms to repressive or abusive regimes. The majority of transfers of weapons in this category fall below the $14 million threshold. In addition, although Congressional pressure has forced the cancellation of certain weapons deals, the short time frame afforded Congress in its reply has never allowed it to actually block an arms sale in an open vote. —  Sweden: A parliamentary council, known as the Export Control Council, consisting of representatives from all parliamentary parties, is provided with notification of all principally important arms exports. In a monthly meeting with the export licensing authority (the National Inspectorate of Strategic Products) the Council can give their opinion, ask for further details, and raise objections regarding these proposed exports. Members of the Foreign Affairs Department and the Defence Department also attend these monthly meetings, representing the Government's position. While none of the Council's objections are legally binding on the Government, no export in which a majority of the Council objected has ever received a licence.

3.   Parliamentary Answers

  Although Hansard does provide useful information about arms transfers, there remains an unacceptable degree of secrecy in the UK over arms export decision making. In an opinion poll conducted in 1998, 77 per cent of those polled felt that there was too much secrecy surrounding the British trade. The result is that large sums of money have been wasted, inappropriate or bad decisions have proceeded unchecked, and vested interests, such as the defence industry, are in possession of more information than MPs.

  It has become established parliamentary convention for successive governments to refuse to answer questions on arms sales to specific countries for reasons of "commercial confidentiality", "disproportionate costs" or because of the Data Protection Act. This was the case in 1997 when MPs attempted to question the Government about arms to Indonesia; ministers withheld information about 64 approved arms shipments due to "commercial confidentiality". One of the principal lessons of the Scott Inquiry is that this practice cannot be justified. The current lack of information on government decisions undermines the democratic process.

  Arms exports are a legitimate area of public concern. It is the duty of Governments to provide Parliament, and therefore the public, with detailed and timely information that enables some assessment to be made. The Government has itself set guidelines for arms exports; it should make it possible for those outside the executive to have the opportunity to judge whether those guidelines are being followed both before and after a sale is made.

—  Recommendation: Ministers should be required to give full answers to parliamentary questions about arms exports. Arms exports are assumed to be legitimate business, and as such should be subject to the same scrutiny as any other legitimate business.

4.   Establishing High Common Standards in the European Union: the Code of Conduct Annual Review

  BASIC acknowledges the leading role played by the UK Government in securing the June 1998 EU Code of Conduct on Arms Exports. BASIC welcome the introduction of the Code as an important step towards increased transparency and restraint. However, as with the Annual Report, the Code does not go far enough and must be strengthened.

  The Annual Review of the EU Code of Conduct, which is scheduled for the Finnish Presidency (July-December 1999) represents a critical opportunity for the UK Government to strengthen the EU Code and, by implication, strengthen transparency and accountability in the UK. Many of the concerns outlined in this submission could be addressed within the remit of the EU Annual Review. BASIC urges the UK Government to take a lead in Europe in pressing for the following inclusions and recommendations;

—  Recommendation: One of the major short-fallings of the Code of Conduct was the failure to include brokering and licensed production within the remit of the agreement. The UK Government should push for the inclusion of these critical aspects of the arms trade within the EU Code of Conduct.

—  Recommendation: One of the primary motivating factors for of agreeing common standards through an EU Code, is to deter the practice of undercutting, that is, if one country grants an export licence which another has refused. Under the current agreement, Member States must notify each other when they refuse an export licence because it would break one of the eight Code criteria. Any country who then wishes to take up the contract must then consult the country which issued the denial. However, although a number of Member States recommended that this process should be multilateral, the consultation will only take place between the country that refuses the licence and the one is planning to approve it. Thus undercutting is likely to take place virtually in secret. This limited approach is unlikely to facilitate the development of a common approach towards sensitive end-users amongst the wider group of Member States. This could prove divisive, possibly leading to a reduction in the number of denials issued and/or an increase in undercutting. The UK Government should therefore push for full multilateral consultation on undercutting before and after a decision to undercut is taken. Moreover, for the purposes of transparency and accountability, the Member States should agree to notify an appropriate committee of their national parliament.

—  Recommendation: The provisions for an annual review which are contained within the final text of the Code fall some way short of the level of public transparency which is necessary for the proper regulation of the arms trade. Although Member States will undertake an annual review of the Code, this will take place in confidence and will only be provided to the Council of Ministers, and not to national parliaments, the European Parliament, or the public. This is a major weakness in the Code of Conduct. The lack of provision for either public or parliamentary accountability suggests that the aim of achieving "greater transparency", which are articulated so clearly in the Preamble to the Code, will not be achieved.

  If the aims of transparency and accountability are to be realised, the Member States should commit themselves to publishing their national reports on annual defence exports. The UK Government, having published its first Annual Report, should call on other Member States to publish their own detailed reports.

June 1999