Examination of Witnesses (Questions 83
TUESDAY 10 NOVEMBER 1998
R HEATHCOTE AND
MR A MANTLE
83. Good afternoon. May I first apologise for
us being a little late in getting to you this morning. We hope
that this does not interrupt your day too much. The questions
we ask may cause you problems today but we shall see what happens.
May I say that we are very grateful to you for coming and for
making the arrangements whereby some of us were able to visit
your offices last week to see the processing of export licences?
May I start with the White Paper? What are the chances of a Bill
coming out next year which will give legislative effect to those
parts of the White Paper for which there is general support and
approval? I realise the Queen's Speech is still some time away
but it is two and a half years since Scott. The Government has
been in power for 18 months. Surely minds must have been made
up and draft legislation must be getting somewhere near your desk.
Is that the position?
(Mrs Roche) May I start by saying how much the Department
welcomes the inquiry of the Committee and we were very pleased
indeed to be able to welcome you and some of your colleagues to
the Department to look at the licensing process. We think this
is a very good way indeed of getting the message across about
what our work is all about and what the work of my officials is
about. Before I answer your question may I introduce my officials
who are here with me today for the benefit of those members who
were not able to get along? Dr Roger Heathcote is the Director
of Export Control and Non Proliferation and Mr Andrew Mantle is
the Director of Export Control. You asked a question about the
White Paper. We produced the White Paper in the summer and as
you and your colleagues will have seen it is a substantial document
which has elicited a number of responses, some 52 in all. We are
considering them all very carefully and we hope to publish the
responses very shortly, subject to any requests for confidentiality
that those who have submitted responses to us may have made. As
to legislation, tempting though it may be to give any timetable,
the best I can say is as soon as the parliamentary timetable allows
then we do intend to legislate. Of course the reason that we intend
to legislate is primarily because the White Paper is a response
to Scott, but also because the legislation we are operating within
is legislation which was passed in 1939 and clearly we need a
revised framework. We are keen to progress but I am clearly dependent
on when parliamentary time can be made available.
84. You really cannot give us an answer and
you do not think it is likely to be within the next 12 months.
(Mrs Roche) I cannot say. It purely depends on the
85. You are dragging your feet a bit on this,
are you not? It has been kicking around for so long. It is not
a matter of great inter-party debate. There is a consensus, more
than a consensus, an impatience that if we are going to have an
ethical foreign policy it has to have teeth at home as well.
(Mrs Roche) I do clearly understand what you say on
this and clearly the new Government have moved very, very quickly
indeed. In July 1997 the Foreign Secretary published the new criteria
which are the criteria against which we license exports and that
was set out very, very clearly to both houses of parliament and
that is very clear and very open. We also intend there to be an
annual report. Clearly the matters which are in the White Paper
are fairly wide ranging, they are detailed and the Government
responded very, very quickly and published that. What I would
say is that these are complicated matters and certainly it is
fair to say in the responses we have had which come from the non-governmental
organisations, from industry and from the academic world, some
substantial issues have been raised there which we would want
to consider carefully and indeed I would also say that you would
want us to consider carefully as a Committee. I repeat, as soonas
soonas the parliamentary timetable allows us, we shall
86. What pressure are you putting on the Secretary
of State and the Government at the moment to ensure that this
will be put in the Queen's Speech sometime?
(Mrs Roche) All I can say to you is that we regard
this as an important piece of legislation but clearly, just as
my department is pressing this, so, as we speak, every other single
department is saying probably even to other members of select
committees, "Yes, we realise this piece of legislation is
very important". We regard it as very important legislation
which is why, as soon as the parliamentary timetable allows it,
we will introduce it. If I may say to you, the criteria introduced
by the Foreign Secretary in July 1997 are something which govern
the way in which we license, it is the way in which our work is
governed and that gives us the right framework. Clearly we are
anxious to move forward, but we have to wait for the Government's
managers to give us the possibility of having it. You will know
as well as I do, perhaps even better, just what the pressures
are on the parliamentary timetable at the moment.
87. May I be clear about the 1997 Cook criteria?
Have these now been superseded by this year's EU code?
(Mrs Roche) They are complementary. You have the criteria
and there is a read-across into both things. What the EU code
of conduct does is really to say how different Member States in
the European Union can exchange information and what hopefully
it will stop is one country undercutting another country and also
one country seizing a market opportunity because a licence may
have been refused for very, very good reasons in another EU state.
The EU code of conduct and the Cook criteria, to use your phrase,
88. Where for example the EU code may be more
detailed, it would be true to say, would it not, that the latest
is the best? The EU code has superseded the criteria in that sense.
(Mrs Roche) No, we would regard them as complementary.
Certainly as far as the licensing process is concerned, my officials,
not just my officials in export control but my officials together
with officials in the Foreign and Commonwealth Office and in the
Ministry of Defence, who are also circulated cases, would be looking
at the criteria as laid down by the Foreign Secretary.
89. The White Paper lists a number of suggested
purposes for new legislation, then basically says that these purposes
will be set out in secondary legislation. Those perhaps less charitable
than myself might ask whether it is not a bit rich to ask parliament
to pass an Act saying that powers for controlling exports will
be given to the Government for purposes which will be set out
in due course? How do you respond to that?
(Mrs Roche) I respond by saying that what will happen,
really for the first time, is that those purposes which will be
in secondary legislation will be subject to parliamentary scrutiny,
which of course is not the position with the 1939 Act, which really
gives the executive pretty unlimited powers; understandable of
course in the circumstances of the timewe were in a wartime
situation why that was there. What, of course, the possibility
of new legislation will do, is to give parliamentarians the opportunity
to scrutinise those purposes.
90. But not to amend.
(Mrs Roche) No, but they will be subject to parliamentary
scrutiny and certainly as far as looking at the purposes is concerned
they will be subject to the affirmative resolution procedure.
91. You do not believe that the purposes in
a sense have been chewed over enough already and that there is
an understanding of where we should be going. You do feel it is
necessary to leave that entirely to secondary legislation, subject
to the kind of criticisms which will be made.
(Mrs Roche) I am not sure actually that the criticisms
will be made. What we will have with new legislation is the overall
framework which will be there. Then parliament will have the opportunity
to examine in detail, through secondary legislation and by the
procedures of the House, the purposes for which we license strategic
exports. I actually think that is a considerable step forward
from what we have at the moment.
92. I would strongly agree with that. Finally
on the White Paper, there is no explicit reference, as many people
have pointed out, to human rights, only to internal repression.
I should be grateful for your comment on that distinction. Presumably
it means for example that it is not intended to seek to control
instruments to be used for capital punishment because although
that is in breach of human rights, it may not be regarded as internally
repressive in certain circumstances. Why is it that we are not
talking about human rights and we are talking about internal repression?
(Mrs Roche) We would actually regard human rights
as encapsulated in that limb of the criteria which talks about
internal repression. We regard it as encapsulated in that and
that would certainly be my position and the position of the Government.
93. Considering that the Foreign and Commonwealth
Office and the United Nations Security Council are making such
a clear distinction that human rights are very specific rights
and also a very keen indicator of volatility, do you not believe
that it is actually very important that we clearly indicate human
rights as a key issue and a key indicator for this purpose as
(Mrs Roche) That is an interesting point. Our aim,
when we framed the White Paper, was to put it within the context
of the criteria which were announced by the Foreign Secretary
in July of 1997 and to align the two. That is why we have used
internal repression and that is why we see human rights as being
an essential part of that. I do understand the point you are making
and certainly it is a point which has been made by a number of
NGOs as well.
94. We have had some written evidence and it
was amplified again this morning that defensive equipment such
as helmet visors and even shields are covered. Why is equipment
of that kind covered? It seems that some people are at a bit of
a loss to know why. I can see in certain parts of the United Kingdom
the use of head covering material may be seen as a form of assistance
in types of gang warfare, but I cannot really see them being applied
in an international context.
(Mrs Roche) I can understand why some people are puzzled
by the point. Clearly defensive equipment, when used in the wrong
hands, can have an offensive role. For example, one can imagine
a situation where you had specially designed military suits for
the protection of those engaged in nuclear or biological or chemical
warfare and of course they are controlled. If you have defensive
weapons being used by people who are using them in a role for
example of external aggression or internal repression, then that
would quite clearly be wrong and we feel would be against the
criteria as announced by the Foreign Secretary. The other difficulty
as well is that if we were to go down that route, this would probably
bring us into conflict with standards which are also agreed internationally.
We are not unique in controlling defensive equipment: it is something
which is very similar in other countries as well.
95. I find that a rather puzzling statement.
Surely any state which considered that it might be threatened
by nuclear warfare or by chemical warfare should have the right
to protect its own personnel?
(Mrs Roche) Absolutely.
96. Similarly, any state which may have to deal
with riot and civil commotion has the right to give some sort
of protection to its police forces. I just think this is surely
taking things a little too far, is it not?
(Mrs Roche) No, I would agree with everything you
have said. They may well have a right to it. Our job, as far as
the DTI is concerned, in conjunction with our other advisory departments,
the Foreign Office and the MOD, is to examine those, to look at
the reasons for it. Of course, you are absolutely right, in the
majority of cases, nation states are using them for perfectly
legitimate reasons, for the safety of their security forces, or
their police forces in difficult situations. There is no problem
about that. The reasonand this comes back to the reason
why the Chairman asked me the question about why export control
relates to defensive equipment as wellis because of the
point I was making that they do have the ability in the wrong
hands to be used in a way which perhaps none of us around this
table would support. That is the distinction we would make.
97. It may be invidious to press you on a specific
instance, but it was evidence given to us earlier this morning,
the helmets for China. China is a country where your Department
has quite rightly been very anxious to promote trade and very
successfully so. How can we assume, what possible logic could
there be to say you cannot have protective helmets sold to China?
(Mrs Roche) As you say, I would not particularly want
to talk about any one case. May I just say to you that what we
do, certainly when we get these things on defensive equipment
and sometimes we get applications, for example when it is aid
agencies, where we have to have a very, very speedy turnround,
is measure everything against the criteria. Obviously we take
advice from our advisory departments, we speak to our posts overseas
and we try to turn that round. In the majority of cases of this
kind there is no problem whatsoever. At the end of the day, and
there is probably only a very small number of cases indeed, we
believe defensive equipment in the wrong hands could be considered
as being used for internal repression or external aggression.
I would stress that I am talking about a very, very small number
of cases indeed.
98. There was a case where the licence was refused
for something which was going to be sent to the UNHCR. That surely
is about as bizarre as you can get?
(Mrs Roche) As I say, difficult for me to speak about
individual cases. May I just say that we get requests which come
in which are as diverse as provision for flak jackets for journalists
who are covering war zones, or aid agencies who clearly need that.
We make sure that we certainly turn round those applications as
quickly as possible and certainly on something like that, we would
want to make sure we gave a response as speedily as possible.
If you are asking me about the overall framework of whether it
is right to have export control governing defensive equipment,
I would say yes, because in a very, very small proportion of cases,
that could be used in a way which would be against the criteria.
Of course we are very, very keen to make sure that the criteria
are carried out to the full.
99. Could you send us information about the
(Mrs Roche) Certainly; I shall do that.