1 Clause 1, page 1, line 10, at end insert—
Where export controls apply to goods which are within one or more of the categories mentioned in paragraph 1(1) of the Schedule, the guidance issued under section (Guidance about the exercise of functions under control orders) shall have regard to their issues relating to sustainable development and to any possible consequences of the goods being controlled that are of a kind, mentioned in the Table in paragraph 3 of the Schedule:",
The Commons disagreed to this Amendment for the following Reason—
1A Because it is inappropriate to make provision in Clause 1 about the contents of guidance under Clause 7 and Lords Amendment No. 17 (as amended by the Commons) makes more appropriate provision.
§ Lord Sainsbury of Turville
My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
Lords Amendment No. 1 inserted text relating to guidance in Clause 1. I hope that, on reflection, the House will be prepared to agree, as the Commons reason explains, that it is indeed inappropriate to make provision on the contents of guidance in Clause 1 rather than in the clause which actually relates to guidance about the exercise of functions under control orders. I hope also that the House will agree with the Commons that more appropriate provision is indeed made in Amendment No. 17, as amended by Amendment No. 17A. For all these reasons, I hope that the House will agree not to insist on their Amendment No. 1.
As the issues raised are so similar, I propose also to address Lords Amendment No. 17 and Amendments Nos. 17A and 17B.
As the House will be aware, the Commons agreed to Lords Amendment No. 17, but with the proviso that the earlier Liberal Democrat amendment, represented by the first seven lines of subsection (4) as it appears on the Marshalled List, be deleted and replaced with the words,The guidance required by subsection (3) must include guidance about the consideration (if any) to be given".Your Lordships will remember that the text I have just read out is that originally proposed by the Government in this House. Under Amendment No. 17B, the noble Lords, Lord Redesdale and Lord Joffe, have suggested that the Government consider replacing the earlier Liberal Democrat amendment with a slightly different text, namely that:The guidance required by subsection (3) must state that consideration shall be given, so far as relevant".In considering Amendment No. 17B, I should like first to express my gratitude to the noble Lord, Lord Redesdale, and to my noble friends and colleagues for their courtesy in meeting me last week to discuss this amendment. I hope that it was a productive meeting.
192 At that meeting, I explained that I was most grateful for the care that had been taken to address the concerns we had with the earlier Liberal Democrat amendment. I also added that I entirely sympathised if some found it hard to understand why we were unable to support their amendment. I consider that this latter point—the need for all to understand the Government's reasoning—makes it all the more important for me to explain clearly exactly why it is that we are unable to agree.
I hope that when I have outlined the damaging, and I am sure unforeseen, consequences of Amendment No. 17B, all will agree with me that the House should not support it. I also hope that, in the course of my speech, I will be able to provide sufficient reassurance about the effect of government Amendment No. 17A to enable the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their Amendment No. 17B and join the rest of the House in agreeing with the Commons in their Amendment No. 17A to Amendment No. 17.
Amendment No. 17B goes a long way to addressing one of the concerns that the Government have already expressed on several occasions. This was that amendments to the Bill might force the Government into a situation where departments were obliged to give some consideration to issues of sustainable development, and all the issues in the schedule table, whether or not they were remotely relevant to a particular case. However, those who have read Hansard for the most recent debate on the Bill in the other place, on 24th June, will be aware that this was not our only concern about the earlier Liberal Democrat amendment, and indeed that this same serious concern extends to the new proposal before us today. If I may I shall explain in detail why that is the case.
Under the Government's proposed amendment, the Bill imposes a duty to have regard when exercising licensing powers to the consolidated national and EU criteria. Unfortunately, Amendment No. 17B has the effect of establishing a new and, in certain important respects incompatible, duty to have regard to issues as described in the amendment.
Under the Government's proposed Amendment No. 17A, the subsection (5) duty to have regard to the guidance addressing the issues set out in subsection (4)(i) and (ii) is informed by the reference in subsection (8) to the consolidated criteria. Indeed, were there ever any uncertainty about our intentions in this regard, review of proceedings of the passage of this Bill in Hansard for the past few months should put the matter beyond doubt. However, the terms of Amendment No. 17B, which says that,the guidance…must state that consideration shall be given, so far as relevant to",actually set up a separate duty. As this would be a primary legislative requirement, it would have the capacity to take precedence over the consolidated criteria and EU code. Thus this duty would conflict with the Government's existing commitment, given to Parliament and to our European partners, to consider strategic export licence applications against the consolidated criteria.
193 As anyone who has examined the consolidated criteria will know, the criteria contain a wealth of detail, setting out the various and sometimes conflicting considerations that must all be taken into account. The terms of the new duty that would be laid upon the Government by Amendment No. 17B would have no such detail, nor would it acknowledge the possibility that considerations might conflict or that risks might vary in magnitude. Thus, such a duty has the potential to require us to take a different approach to licensing decisions within the UK from that taken by the rest of the EU and to require the Government to take licensing decisions against criteria that were different from those in the EU code of conduct. It is even conceivable that in the future this duty might make it impossible for the UK to subscribe to the EU code. This cannot be right.
Moreover, under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance which addresses sustainable development and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. The creation of this new and different duty puts this link with the criteria at a distance, with the result that the definition of all the schedule table issues and sustainable development is no longer informed by the definitions in the criteria.
The proposed amendment would require the Government to give consideration so far as relevant to "issues of sustainable development"—no more and no less. Relevant issues of sustainable development in this context would extend way beyond the terms of criterion 8. For example, it might encompass issues relating to environmental, animal and plant preservation and protection. To extend the application of this term in such a way would put us completely out of step with our European partners, and would create considerable uncertainty for all operating under the export licensing regime, not to speak of putting UK industry at a competitive disadvantage in world trade.
I hope that this explanation has given the House some indication of why Amendment No. 17B, however well intentioned, would have inappropriate and damaging consequences. However, before I in due course ask the House to join me in inviting the noble Lords, Lord Redesdale and Lord Joffe, to withdraw their amendment, I shall try to give some reassurance about the effects of government Amendment No. 17A.
I should first set the amendment in context. Noble Lords will remember that we acted several months ago to strengthen significantly the role played by guidance and the consolidated criteria under the Bill, by making it a requirement for the Secretary of State to issue guidance about the general principles to be followed when exercising licensing powers and by stating that the consolidated criteria constitute such guidance on general principles. The Bill thus makes clear the prominent role that the Government intend the consolidated criteria to have. It is also clear that the Government intend it to be a requirement for all future governments to issue guidance on how they propose to consider sustainable development and all relevant consequences listed in the schedule when 194 exercising their licensing powers. The only way to change this requirement would be by primary legislation.
I know that many have been concerned that: the words in Amendment No. 17A, "if any", might allow a future government simply to decide to ignore important issues such as sustainable development when considering export licence applications. However, this is not the case. Under the Government's original proposal, now represented by Amendment No. 17A, it would not be possible for a future government simply to decide to ignore sustainable development or any of the schedule table issues by saying, "We have considered sustainable development and concluded that it has no place in the consideration of any export licences". I can assure the House that that would not meet the requirements of the clause proposed by the Government.
All governments need to be able to take justifiable decisions—I deliberately emphasise the word justifiable here—that there is no need for sustainable development or indeed any of the other schedule consequences to be considered in certain specific cases. However, when exercising licensing powers in accordance with general principles guidance issued under this clause, this ability to take such justifiable decisions would not extend to ignoring relevant information.
I would remind the House that it is a basic principle of government that when taking a decision, Ministers must always take into account all relevant information. I mention this now because it has been put to me that the fear is that a future government might see government Amendment No. 17A as a means to avoid taking relevant information into account. A Minister who fails to take relevant information into account when reaching a decision risks opening him or herself up to judicial review for having taken an improper decision.
It is clear to me that we all share the same goal—to ensure that future governments cannot simply choose to ignore issues such as sustainable development, human rights and all the other issues set out in the table in the schedule. Therefore, in the light of the assurances I have just given, and a clear statement that it is my and the Government's belief that government Amendment No. 17A would not allow future governments simply to ignore these important issues, I hope that the House will agree with the Government.
For all these reasons, I ask the House not to insist on its Amendment No. 1, to which the Commons have disagreed for their reason numbered 1A. In due course, I shall also be asking the noble Lords in whose name Amendment No. 17B stands to agree to withdraw their amendment. Finally, I shall also be asking the House to achieve our common goal and avoid these unnecessary and damaging effects by begging to move that the House do agree with the Commons in their Amendment No. 17A to Lords Amendment No. 17.
§ Moved, That the House do not insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.—(Lord Sainsbury of Turville.)
§ 3.15 p.m.
§ Lord Joffe
My Lords, in speaking to Amendment No. 17B tabled in my name and that of the noble Lord, Lord Redesdale, I wish to speak also to Amendment No. 17A.
I have listened carefully to the Minister's courteous and detailed response but remain unconvinced about the additional duty that would be placed on the Government. I shall touch on that matter later.
The purpose of Amendment No. 17B is to ensure that the Government are obliged in practice to give consideration to the possible impact upon sustainable development when making export control decisions. The Government assure us that they have every intention of doing that but refuse to commit themselves unreservedly to do that in the Bill. Instead, they have introduced the weasel words "if any" which sound so innocuous but which appear to give the Government discretion to exclude virtually whatever they wish from the guidance to be issued by the Secretary of State. I emphasise here that I accept that the Government cannot totally disregard sustainable development but the ability to define at their discretion when they will exercise the right to disregard it is fundamental to the case for the amendment.
It is difficult to envisage how the Government will produce meaningful guidance on general principles on an "if any" basis unless they include with the general guidance a description of the types of transaction in respect of which sustainable development would not be a consideration. If I am mistaken in arriving at that conclusion, I hope that the Minister will in his response outline precisely how the Government propose to give guidance on an "if any" basis. It would seem that under the proposed government amendment the Secretary of State would be free to provide guidance that sustainable development should be excluded from consideration where, for example, an overpriced air traffic control system was being sold to an impoverished country. Does the Minister agree that the Secretary of State would have the power to do that?
One of the hallmarks of this otherwise excellent Bill is what I would categorise as government spin ingrained in legislation. The Government purport to include sustainable development as a consideration but then introduce the words "if any" which substantially negate that effect. Likewise, as regards the extraterritorial trafficking of arms the Government purport to criminalise that activity on the part of UK citizens but then provide a loophole under which they can lawfully traffic outside the United Kingdom.
The Minister has argued that there is concern about the definition of "sustainable development" that would lead to the Government having to issue guidance on a number of different areas that went 196 beyond the European Union code. But does he not accept that the whole point of a guidance section is that the Government should set out clearly what the definition is and issue guidance about what is and is not relevant?
In the other place Nigel Griffiths argued that the original Lords amendment was inconsistent with the European Union code of conduct on arms exports and that that made it impossible for the United Kingdom to abide by the code. The Minister developed that argument earlier in the debate. In fact, there is nothing at all in the proposed amendment which conflicts with the European Union code. Legal advice taken from Matrix Chambers confirms that. Will the Minister draw the House's attention to the conflicts that he fears would arise under the amendment? The preamble to the European Union code is clear. It is determined to set high common standards which should be regarded as the minimum for the management and restraining of conventional arms transfers by all member states. It is clear that those are minimum standards. There is no reason at all why the Government should not extend their provision to cover items which are not inconsistent with the European code but sympathetic to it.
The Government's other concern about removing the words "if any" was their need for flexibility. That concern is also misplaced. It must be remembered that what we are concerned with in this amendment is guidance. All that is required is that the Secretary of State pay due regard to the guidance. If sustainable development is not an important consideration, the guidance could state that little or no weight needs to be placed on it.
Overall, it is difficult to find any credible reasons for the Government not to accept the Lords amendment. However, Amendment No. 17B is proposed in a spirit of compromise and is carefully drafted to meet the flexibility concerns expressed by the Minister on Report. In col. 1101 he said that,the Government need to be able to take common-sense decisions and to reach a judgment when taking export licensing decisions that particular considerations are simply not relevant in certain cases and situations".—[Official Report, 18/04/02; col. 1101.]That is precisely what the amendment seeks to achieve. It is carefully crafted to include the Minister's wording with regard to relevance. In the amendment "if any" has been replaced by "so far as relevant".
Legal opinion from Matrix Chambers advises that the phrase "so far as relevant" still provides the Government with some flexibility, giving them the option of not considering sustainable development and the relevant consequences in cases where it is clearly not relevant, such as an uncontroversial single shipment of arms to, say, the USA or Canada. However, it does not allow the Government to ignore sustainable development and the relevant consequences where they are relevant. The result would be that where sustainable development is relevant it must be considered but where it is not relevant the Government do not have to consider it, which, I understand, is exactly what the Government wish.
197 In making the case for the amendment I have focused on the effect of the words "if any" on sustainable development. In point of fact, the government amendment extends well beyond that. It applies by virtue of subsection (4)(ii) to all the other relevant consequences included in the table in paragraph 3 of the schedule such as adverse effects on peace, security, internal repression and breaches of human rights. It enables the Secretary of State to give guidance that all or any of those matters should be ignored in certain circumstances as defined by the Secretary of State. That absolute right of the Secretary of State to define the circumstances in which he may simply disregard those issues has the potential to undermine many of the purposes of this excellent Bill. This amendment would limit the Secretary of State's right to disregard those issues to cases where they are irrelevant and do not need to be taken into account. It in no way contradicts the Government's intentions as expressed from time to time.
§ Lord Redesdale
My Lords, I wish to speak to Amendment No. 17B to which I have added my name. I very much hope that the noble Lord, Lord Joffe, will consider pressing the amendment as he has worked extremely hard on it to make it acceptable to the whole House. He has in particular addressed the concerns raised by the Conservative Front Bench at the previous stage of the Bill.
The issue that is at stake is the wording "if any". I hope that the Minister does not mind my saying that I consider that that is an appalling piece of drafting which is wide in its scope. Those two words enclosed by brackets cause much disquiet.
The noble Lord, Lord Joffe, rehearsed the arguments comprehensively—including on issues affecting the air traffic control system in Tanzania. Organisations such as the United Nations Development Programme, the World Bank and the International Monetary Fund, when considering grants, view the absence of sustainable development as a had deal—so one wonders why the Government went ahead. That decision places question marks over whether there should be a much stronger push for the expression "sustainable development".
The Minister mentioned the European Union code of conduct but that leads to minimum criteria. Considering the excellent work done by the DfID in pushing hard for sustainable development and its incorporation into almost every aspect of policy, the Government could have used the opportunity to give a definition of "sustainable development" in the Bill.
The noble Lord mentioned many of the legal points and the opinion given by Matrix Chambers, which I will not repeat. The Minister said that the amendment will not meet with favour this evening but I hope that the Government will examine increasing the role of sustainable development in future.
When will the Government publish their internal review of the application of criterion 8 to export licensing? That will have some impact on the Minister's assertions.
§ 3.30 p.m.
§ Baroness Whitaker
My Lords, I too am concerned with Amendments Nos. 17A and 17B. I understand the problems that government Amendment No. 17A seeks to address but the primacy of sustainable development in any dealings with the developing world is a very serious matter. I am not sure that the Bill as amended by the Government takes full enough account of that. Amendment No. 17B of the noble Lord, Lord Joffe, certainly does—while leaving the Government with flexibility.
My noble friend the Minister maintains that the government amendment makes it impossible to wriggle out of taking proper account of sustainable development. I hope that he will clarify that specifically.
Lingering doubts—I express my thanks to a DTI official, Jane Whewell, for her help in trying to allay them—are felt by many experts and pressure groups, as well as by noble Lords. I ask my noble friend to fulfil his undertaking in Committee on 4th March, to which the noble Lord, Lord Redesdale, referred, to review criterion 8 dealing with sustainable development.
Will my noble friend say when that review will be completed? Will it be published—and will it, in the process, make the standards for judging the sustainable development impact of an export licence identical with those of the Export Credits Guarantee Department so that there will be truly joined-up government in this most important area? Among other things, that would obviate snarl-ups such as the BAe contract with Tanzania.
§ Baroness Miller of Hendon
My Lords, as the noble Lord, Lord Redesdale, mentioned that these Benches supported sustainable development at an earlier stage, it is only right that I should explain our current position.
The Minister spoke about the need to strike a balance. My colleagues in another place have reached the conclusion that government Amendment No. 17A to the amendment of the noble Lords, Lord Joffe and Lord Redesdale, has taken the Government a long way. Given that the Government will always take sustainable development into account, we would not oppose Amendment No. 17A. While we accept that both noble Lords and the noble Baroness, Lady Whitaker, feel strongly about the matter, we believe that the Government will deal with it in an appropriate and balanced way.
§ Lord Judd
My Lords, I declare an interest as a member of the Oxfam Association and a trustee of Saferworld—two organisations that have taken a close interest in the Bill's subject matter.
Amendment No. 17B must be taken particularly seriously in light of the Government's recent decision to change the criteria in relation to the delicensing of component parts for F16s destined for Israel. On 8th July my right honourable Friend the Secretary of State for Foreign and Commonwealth Affairs announced changes to the guidance on the sale of arms 199 components that are incorporated in larger arms systems. Although the status of the consolidated criteria is deemed to be unchanged, five other criteria will also be considered. That disturbing precedent creates a contradiction at the heart of UK policy whereby the export of arms systems from the United Kingdom must be examined carefully against ethical principles enshrined in the consolidated criteria. At the same time, a new fast-track approach is to be taken to UK arms components.
The amendment is concerned with strengthening the Bills guidance section, which is crucial in light of recent developments. My right honourable friend recently defended the decision to change the guidance on the basis of the importance of UK links to the United States and the defence industry, rather than on the basis of the consolidated criteria. That is worrying. I am concerned that despite government assurances that the new Bill will contain tough new provisions to ensure that British arms do not contribute to internal aggression or undermine regional stability and sustainable development, the Secretary of State can issue new guidance that changes licence decision-making as and when that Minister sees fit.
The Government have assured the House that the inclusion of the words "if any" would not allow the current or a future government to issue guidance that would ignore sustainable development. The Government argue that public pressure and the media would prevent future governments making any change that would weaken the role of sustainable development or any other consequences in the schedule—but the new guidance issued by my right honourable friend does precisely that, so I am concerned about the extent to which we can accept the Government's assurances. We have clearly seen that guidance can be rewritten and refocused at will to reflect changing priorities.
The Government have frequently argued that the European Union code of conduct has light and shade aspects and is open to interpretation. It is precisely the need for clarity that makes the amendment so crucial. Clause 1 is about guidance. Government claims about a need for total flexibility are unfounded. Guidance, by its very nature, is fluid. Surely any of the Government's concerns—be they about definition or policy—can be put before Parliament.
Notwithstanding many important debates on the Bill, many key decisions can still be taken without clear consultation with Parliament. The Bill states that guidance can be published in such a manner as the Secretary of State sees fit. In response to previously proposed amendments to ensure that any guidance is published as soon as possible or after consulting Parliament, the House has repeatedly been assured that such amendments are unnecessary. The Government have made great play of their commitment to consultation. We were told that they would always issue guidance immediately it was decided, as licensing decisions based on unpublished 200 guidance would be open to legal challenge. Yet the timing of the Foreign Secretary's surprise statement on 8th July, in which he set out how the Government,will in future approach licence applications for goods where it is understood that the goods are to be incorporated into products for onward export",raises serious questions about timing. In the same statement, the Foreign Secretary explained that the Government had considered against this background,its response to a number of applications for the export of parts, subsystems and components to the USA for incorporation into equipment eventually destined for other countries. These include Head Up Display units (HUDs) for incorporation in F-16 aircraft scheduled for delivery to Israel in 2003".—[official Report, Commons, 8/7/02; col. 651W.]Clearly, that consideration—and, at least in the case of the components for the F-16s, the decision to issue a licence—took that new guidance into account before it was published. Indeed, if we are to believe some reports, the decision about the F-16 was taken some time ago. If that is the case, the implications involving the Government's earlier reassurances regarding extensive consultation and timely information bear some scrutiny.
Finally, the Minister referred—we do nothing but applaud his personal good will and commitment to all of these issues—to potential conflicts with the European Union. Has he seen the advice given by Matrix Chambers earlier this month? The advice was:The government's assertion that wording such as that suggested…would conflict with its international legal obligations and EU law is incorrect. If there are overriding considerations such as an international or European obligation, then this is a valid reason for deciding to comply with them and for disregarding the UK guidance. There is no conflict".I believe that the matters raised by the noble Lords, Lord Joffe and Lord Redesdale, are very important. I am sorry that the Minister did not choose to listen to their arguments before giving such an absolute reply. He replied to the debate before he had listened to it, which was unfortunate. I hope that when he replies, he will take up more fully some of the very serious matters that have been raised.
§ The Earl of Sandwich
My Lords, too, support my noble friend's Amendment No. 17B, which we thought offered a reasonable compromise through the use of the phrase, "so far as relevant", although the previous proposed phrase—"regard shall be had"—seemed adequate.
While the Minister is listening to our niceties of phrase, other sections of government are pushing this Bill ahead despite considerable public concern about the use of British equipment in Tanzania, Sudan and other countries and territories in which sustainable development could be ignored. Now we have the additional consolidated criteria which were introduced on 8th July, which were mentioned by the noble Lord, Lord Judd. The NGOs, working with Palestinians in the West Bank and Gaza, who have had to suffer the direct impact of Israeli F-16s and the subsequent damage to life and property, have been astonished, as are their many supporters in this country, at this Government's ability, as the noble 201 Lord said, to ignore human rights and sustainable development and to publish the changes without consultation. On such occasions, one wonders about our right as a nation to pontificate on good governance in Africa and elsewhere when our own executive appears to have the freedom of action to escape parliamentary scrutiny and introduce new criteria that merely reaffirm partnership with our Atlantic allies.
The Foreign Secretary's statement contained the phrase:The Government continues to be seriously concerned about the situation in the Occupied Territories".—[Official Report, Commons; 8/7/02, col. 651W.]That looks a little lame alongside our statements of faith in the Atlantic alliance. I do not see how the Government can reconcile the two. The Minister's use just now of the words, "justifiable decision", does not help me and I doubt whether it helps other noble Lords. The underlying question for me is: to what extent are we, and the principles relating to export control, being held to ransom by our relationship with the United States?
Meanwhile, I welcome the Minister's statement that there is a need for clearer procedures within Whitehall for reaching decisions where sustainable development is an issue. As the noble Lord, Lord Redesdale, said, we look forward to the review of criterion 8 in the guidance. I strongly agree with the noble Baroness, Lady Whitaker, that in keeping close to the international criteria, we should also be aware of and follow the stronger ECGD statement of business principles to ensure consistency in policy. I hope that the Minister will confirm that.
§ 3.45 p.m.
§ The Lord Bishop of Oxford
My Lords, I share the concerns of the noble Lord, Lord Judd, about the extent of the discretion currently allowed in the interpretation of the criteria. When some of us were students, we learned how a bold statement could die the death of a thousand qualifications. I fear that a bold statement about guidance on sustainable development could die a similar death. The amendment in the name of the noble Lord, Lord Joffe, is therefore preferable because it imposes a clear and inescapable duty.
I say to the Minister that the arrangement gives to the Government proper discretion, freedom and flexibility because of the phrase, "so far as relevant". I find it very difficult to understand why the Government cannot agree to Amendment No. 17B.
§ Lord Brennan
My Lords, I again bring to the attention of the Minister the degree of concern felt on these Benches about the proper combination in such a Bill of national interest and of a moral commitment to sustainable development, especially in the developing world. There are those on these Benches who wish to be reassured, if there is a Division on the amendments, about the way in which the Government would seek to apply the Bill, once it has been enacted, and the guidance under it.
202 I have four questions for the Minister. It would greatly assist the House if the Minister answered them, as usual, in his clear and constructive way. First, is Amendment No. 17A to be read so as to endow the Minister with a discretion that is absolute? I f not, what are the qualifications?
Secondly, what is the source of the Government's present criteria for determining issues involving sustainable development in relation to export control licences? Where do we look for it? The clarity of the Foreign Secretary's statement in July clearly set out issues of national interest that would properly play their part in the making of a decision but it said nothing about the relevance, if any, of sustainable development to those criteria. In addition, the Bill—and the guidance, about which we know nothing as yet—says nothing about any criteria. Are we on these Benches to look to the European code of conduct, to a government paper produced on a previous occasion or to some other statement? If that could be provided today, it would be helpful and it would reassure us that there are criteria that the Government would apply in maintaining the balance between national interest and the needs of sustainable development.
Thirdly, will the Government consult on the guidance that they propose to publish so that those who are interested can play their part in making suggestions about what it should contain?
Lastly, if the Government say that the Bill is clear and that any public concern is met by the opportunity for the public to exert pressure in an appropriate case, how will the public know about such a case? Does the Government's approach that public pressure will play a balancing role implicitly mean that the Government will make public those cases in which they have had to make a decision or are about to make a decision which balances national interest considerations and those involving sustainable development? If it does mean that, could that be made explicit?
Answers to those questions, as best can be given today, would reassure us on these Benches that, whatever the terminology of this Bill—Amendment No. 17A smacks more of an author such as Kafka than any declaration of rights in this field—the Government's intention, which they would be prepared to carry out, would satisfy the public that when the Government make decisions, they will take into account the needs of sustainable development, where they are relevant, and give effect to them if the factors involved justify it.
My noble friend should not be misled by the fact that although this is a non-political question, those on the Opposition Benches confidently expect an appropriate and balanced approach by the Government. So do we, but we would like considerably more particulars than the other side asked for, in the way in which I have just put them.
§ Lord Razzall
My Lords, perhaps I may echo the sentiment expressed by the noble Lord, Lord Brennan, in relation to Kafka. I find it absolutely extraordinary that for the past 42 minutes we have been debating an 203 issue in respect of which, so far as I am aware, no noble Lord is not in favour of the proposition that the Government should take into account sustainable development in their export criteria. That seems to be common ground between us all; yet we are again debating two small words and five small letters—"if any".
My noble friends and I have thought long and hard about whether the Government are being devious here. I have to conclude that they are not. We can therefore conclude only that this is a problem with the lawyers. On many occasions in this House—I say this as a former lawyer, and I am not looking at the noble Lord, Lord Brennan, at this point—we have had considerable sympathy with Jack Cade in the peasants' revolt, who indicated that when they arrived in London they would first kill all the lawyers. I believe that in this situation the Government have impaled themselves on their own legal advice.
As the noble Lord, Lord Judd, has indicated, one of the problems for the Government is that the umbrella organisation, the UK working group on arms, instead of simply accepting the legal advice that the Minister has been given, obtained their own legal advice stage by stage, step by step, as the Bill went through Committee, Report stage and Third Reading, until its arrival with your Lordships today.
The nub of the Government's argument during the passage of the Bill through your Lordships' House and through the House of Commons was that without the use of the words "if any", the Government would not in a relevant case be able to consider issues relating to sustainable development; or rather that where issues of sustainable development were not relevant, if the words "if any" were removed, the guidance would have to require them to consider issues relating to sustainable development where it was not relevant. We accepted that.
The noble Lord, Lord Joffe, and my noble friend Lord Redesdale tabled an amendment that provided for consideration of sustainable development where it was relevant. So we accepted the Government's statement on relevance. We understood the point of the words "if any", and my noble friend's amendment dealt with the Government's concern.
When the matter returned to the House of Commons, the Government raised the point about compatibility with European Union law. That was an entirely new point, which had not been raised in your Lordships' House. I do not need to rehearse the arguments. The noble Lord, Lord Judd, replied very succinctly and adequately to the point and to the advice that had been obtained by the UK working group on arms; namely, that the European Union criteria would override any British criteria, were that to become a problem.
I fear that the Government will not move on this point. As I have said, they have clearly impaled themselves on their own legal advice. If they do not intend to move on it, I believe that the Minister should give a significant assurance in Hansard for future 204 generations. The argument made from our side and from the Labour Benches is that the inclusion in this clause of the words "if any" means that a Secretary of State, if so minded, would be entitled to issue guidance stating that no consideration is to be given to any of the issues set out in the clause, including sustainable development.
If that is not the case, and if it is not the case that it would be impossible to challenge any such guidance on the grounds that it was ultra vires, which seems to be the Government's case, it would help those of us who believe that the legal advice the Government are receiving is wrong if the Minister could confirm that in his view no one could argue that it was an ultra vires deception. If the Minister could give us that clear undertaking, it would go a long way towards removing many of the concerns that noble Lords on all sides of the House have about those two small words, "if any".
§ Lord Sainsbury of Turville
My Lords, I gave a very long initial answer because during the course of our consideration of the Bill we had already looked at the question of whether we could solve this problem by the use of the word "relevant" and had decided that we could not.
I begin by answering the point raised by the noble Lord, Lord Joffe. I have set out in great detail the reasons why we feel that Amendment No. 17B has unforeseen and damaging consequences and why it conflicts with the EU position. It would not be sensible to repeat that detail. It is on the record. The legal advice that we have received is quite clear.
The noble Lord also asked how the Government propose to issue guidance on the term "sustainable development" and speculated about that. There is no need for such speculation. We have already made it clear that the guidance on general principles of sustainable development which we intend to publish is that of criterion 8 of the EU code.
I had hoped that I had reassured the noble Lord, Lord Joffe, about what we still believe this clause provides. There is no need to repeat it. The noble Lord, Lord Razzall, asked for a clear statement for Hansard. For that very reason, I gave a very carefully considered statement of my view of the legal position to reassure people in the future about what the Government believe this clause does.
The noble Lords, Lord Redesdale and Lord Joffe, raised the question of the air control system in Tanzania. There will be no decision where there is not a question that the Secretary of State has to make a judgment on these issues. But that is not the issue that the House needs to confront in considering this amendment.
Under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance, which addresses sustainable development, and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. Lords Amendments Nos. 17 and 17B, however, both set up a separate duty which has the capacity to take precedence over the consolidated criteria and the EU 205 code and thus conflicts with the Government's existing commitment given to Parliament and to our European partners to consider strategic export licence applications against the consolidated criteria.
We have to decide today which of those approaches is the right one. I urge the House to take a balanced view, based on the merits of the proposals before it, and agree not to insist on amendments which have the capacity to take precedence over and conflict with the consolidated criteria, but instead to agree with the Government's Amendment No. 17A, which ensures that the subsection (5) duty to have regard continues to be informed by reference to the consolidated criteria in subsection (8) of the clause.
The noble Lord, Lord Redesdale, and the noble Baroness, Lady Whitaker, raised the question of inter-departmental discussions on criterion 8 review. I was pleased to announce on 4th March this year that the Cabinet Office was leading a discussion on how criterion 8 of the consolidated criteria—the sustainable development criteria—can most effectively be applied in assessing relevant export licence applications. Although I have not been involved in those discussions, I understand that the Government hope to make an announcement of their results as soon as possible.
As I said, I have not been involved in those discussions, but I want to make one point clear. I understand that the discussions involved all government departments with an interest and addressed the need for clearer procedures for reaching decisions where sustainable development is an issue rather than changing policy with regard to criterion 8 of the consolidated EU and national arms export licensing criteria. I want to make that clear so that there is no misunderstanding on that point.
The noble Lord, Lord Judd, raised the issue of the incorporation statement. The most important point about that statement is that it very clearly demonstrates a point which we have made on a number of occasions during this debate; that is, that issues can arise where the consolidated criteria do not provide specific guidance on the approach to be adopted. It is right and proper that the Government issue guidance in such cases, and that will remain true in the future.
One might ask why the issue of the incorporation of parts into larger armaments has not been raised previously. The fact is that it has not been raised by any political party inside or outside Parliament. Clearly with a new situation such as that, it is necessary to produce new guidance to cover the point.
§ Lord Judd
My Lords, will my noble friend give way? I am very grateful to him for dealing with this point, but there is another matter with which he has not dealt. What is worrying is that it is clear that the Secretary of State may suddenly move the goalposts without telling anyone that he is proposing to do so and without providing an opportunity for consultation.
§ Lord Sainsbury of Turville
My Lords, this was clearly a case where a decision had to be arrived at in 206 the light of a totally new situation. In those circumstances, it is right and proper that the Government give clear guidance on the basis of which they will take decisions.
§ Lord Campbell-Savours
My Lords, on that matter, would this not have been a classic case for putting before the defence exports scrutiny committee that we have struggled so hard to bring about under this legislation and which to date the Government have refused to set up?
§ 4 p.m.
§ Lord Sainsbury of Turville
My Lords, that question, which concerns a proposal that we have debated in this House and which has many difficulties attached to it, is probably the type of question on which such a committee could have been asked to give its view. Nevertheless, those decisions had to be taken and some guidance had to be given at that moment.
I turn to the questions raised by the noble Lord, Lord Brennan. I believe that his first question concerned the issue of absolute action. As I explained earlier, Amendment No. 17A needs to be seen in context. It does not stand in isolation and should be seen in the context of the rest of the clause, which refers to the consolidated criteria, and, indeed, in the context of the proceedings of the passage of the Bill, as reported in Hansard. Under the Bill, it would not be possible—I have made this point previously—to choose to ignore issues such as human rights and the other issues listed in the schedule.
The noble Lord asked what was the basis of the guidance. It is clearly the EU criteria. In fact, we shall not consult on the EU criteria because they are the criteria and there is no point in consulting on them. The noble Lord also asked about individual decisions. We do not ever comment on individual decisions in a case such as this.
I hope that I have set out the Government's position and explained why we cannot accept Amendment No. 17B—that is, because it produces damaging and unforeseen consequences. I hope also that I have dealt clearly with the question of reassurance for the record in Hansard, and that noble Lords will be reassured by that.
I ask the House not to insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
§ On Question, Motion agreed to.