Export Control (Amendment) (EU Exit) Regulations 2020

Lord Bassam of Brighton Excerpts

Wednesday 2nd December 2020 Grand Committee

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I always know I am in good company when I am on the same speakers’ list as the noble Lord, Lord Purvis, and the noble Baroness, Lady McIntosh. Their eye for detail and content is almost a legend in the House.

These regulations make amendments to legislation relating to the export and transfer—including other trade controls—of military and, more importantly for the purposes of this debate, dual-use goods. The Government have estimated that, on a rolling 10-year basis, the UK is the second-largest global defence exporter and a major exporter of arms, so it is extremely important that the UK must have a robust export control regime now and after the transition period ends. Any steps taken to guarantee its robustness are obviously welcome. The noble Lord, Lord Purvis, made the point well: we must not have gaps and holes in this regulatory system. That is extremely important.

This instrument will make changes at the end of the transition period, when export control regulations will be domestic law in Britain while export control regulations in Northern Ireland will, as the noble Lord, Lord Purvis, pointed out, continue to follow EU law. Although the changes are mainly technical, I have some broader questions for the Minister on the specifics of the regulations.

The Explanatory Memorandum states:

“Regulation 7(4) provides for an exception to certain prohibitions to continue in relation to a certified person who is a part of the armed forces, a police force, or a public authority … who is a hunter or sport shooter, or who holds a Manx firearms certificate.”


How many people is this in total? How many people will it affect?

The Explanatory Memorandum also states that Regulation 9 amends the Secretary of State’s

“regulation-making powers in the Export Control Act 2002”.

I want to find out from the Minister whether these regulations are made under the affirmative or negative procedure. Also, who will the Secretary of State consult before using the powers?

The Explanatory Memorandum also states:

“Regulation 15 provides for certain authorisations granted by the Secretary of State under the Torture Regulation that have effect before the end of the transition period to continue to have effect after”


the end of the year. How many authorisations does the Minister expect to be granted between now and 31 December?

The noble Baroness, Lady McIntosh, has already gone through the report from the Joint Committee on Statutory Instruments and raised serious concerns about the SI. As she said, the committee says in its report that the regulations are defectively drafted. The noble Baroness also pointed to Regulation 7(9), which has the effect of inserting new Part 6A into the Export Control Order 2008. That part includes new Article 42N(2), concerning the transfer by non-electronic means of software or technology intended for weapons of mass destruction purposes, which, the committee says, has been too narrowly drafted. The Government say that they recognise this mistake, so, along with the noble Baroness, I have to ask: why have these draft regulations not be withdrawn and relaid if they are defective? Surely this cannot be right.

The committee also said that the Government must

“not make legislation which it knows will have an effect which is significantly different from what is intended, unless doing so cannot reasonably be avoided.”

I appreciate that we are coming to the end of the transition period, but what is the urgency with these regulations? Why can they not be corrected in time? I must ask when these errors will be put right. When will they be corrected in amending legislation? If we are told “early in 2021”, frankly, that is not good enough as an answer. We must have a more specific date because we need certainty in the process. Certainty and clarity are what people in the export markets want at the forefront.

The committee also highlighted that Part 5 of the draft regulations amends the trade in torture regulations. These regulations have not yet been made, as far as I am aware. Perhaps the Minister can explain why. As I understand it, they are currently approved in draft only and do not yet take account of the Northern Ireland protocol. That seems a significant failing and gap. Again, the committee said this was “defective” and reported that Part 5 of the regulations makes an

“unusual or unexpected use of enabling powers”.

We need an explanation for that. Why are Ministers using powers in this way and when will the trade in torture regulations be published, so that they can be considered by both Houses?

We recognise that we have left the EU and have a domestic export control regime in Great Britain, but these regulations, especially in how they relate to Northern Ireland, are interesting in the context of developments with our European friends. In November, the German presidency of the EU Council and Parliament agreed to new rules for the trade of dual-use items. This could lead to stricter export controls, including in Northern Ireland, on cyber surveillance technology and items, and cryptographic items. Such items could include facial recognition and spyware. This could introduce greater safeguards to minimise the risk of human rights violations. Do the Government want to expand controls to cover new and emerging technologies, as part of the UK’s export control regime? Will they hold a consultation on this?

We also have to put our export control regime in the context of the Government’s actions concerning arms sales to Saudi Arabia, where the true robustness of the UK’s regime has often been called into question. Last year, the Court of Appeal ruled that the Government had acted unlawfully by approving arms sales to Saudi Arabia without any assessment of whether the coalition had breached international law. The ruling was dismissed by the Government in July, when the International Trade Secretary said that more than 500 alleged incidents of war crimes by the coalition in Yemen were “isolated” and showed no pattern or trend.

I know that noble Lords are aware that the UN has described the war in Yemen as the largest humanitarian crisis in the world, with more than 100,000 people being killed. The Campaign Against the Arms Trade said that

“the government has provided very little information on how it reached the conclusions it did, including how it decided there was no ‘pattern’ of violations.”

Will the Government now provide detailed information relating to their decision-making process? The public need answers on this and we, as Members of the Lords, do too. It was also reported recently that the Government approved a backlog of hundreds of applications to export arms to Saudi Arabia. How many has the DIT approved since July?

As the transition period ends, we need to make sure our export control regime is fit for purpose in recognising human rights violations and new technology. These technical changes do little to reassure on these points. That the Joint Committee has described the SI as “defective” in several regards worries me more. I look forward to hearing the Minister’s answers to these questions.