The Need for Change

Public concern over British involvement in the transfer of arms and other strategic exports has grown since the end of the Cold War, in response to increasing regional instability and a number of well-publicised controversies involving British policy on strategic export controls.

In the wake of the arms-to-Iraq court case, the Scott Report recommended a thorough review of Britain's strategic export control regime, drawing attention to a number of areas of serious inadequacy, including a culture of false DTI certification given ministerial encouragement. The White Paper presently under consideration is intended as a response to the recommendations made in this report, accepting criticism over a lack of Parliamentary scrutiny and proper transparency in export licensing procedures.

However, as admitted in the foreword to the White Paper, there is a need to go beyond the Scott Report and ensure that Britain is up to date with modern forms of strategic transfer. This has been highlighted by the recent Sierra Leone/Sandline controversy, involving the brokerage and trafficking of arms and mercenary services in violation of a UN embargo. The unacceptable lack of controls in these developing areas is echoed by an inattention to the increasingly contentious issues of licensed strategic production overseas and security training.

In addition to these inadequacies of Britain's strategic export control regime, there is an urgent need to address the wider issues of the UK's position within an increasingly interdependent international community. If British commitments to EU and UN embargoes are to be seen as actively enforced, strategic export controls must adapt to operate on this international level.

In the aftermath of the Cold War, a proliferation of arms transfers between third-world and ex-communist block countries has worked against the interconnected work of a number of ministries, including the Department for International Development and the Foreign Office as well as the Ministry of Defence. These consequences widen the concerns of UK strategic export policy, to include the need for close monitoring of its licensed exports to prevent redirection or abuse of end-use conditions.

As Europe's largest arms exporter and joint co-sponsor of the EU Code of Conduct, the UK has a unique opportunity to set the agenda for future strategic export policy, and move towards greater international restraint and common standards in the trade in arms. In addition, a comparable Code of Conduct for the United States' strategic exports is currently stuck half-way in their legislative process, and an example of strong purpose by the UK could assist in its passage. Although there are serious impediments to fully answering the challenges outlined above, a recognition of all the issues involved is essential if this window of opportunity is not to be squandered.

In order to answer the need for accountability, the purposes of strategic export controls are to be set out in legislation, answering a criticism as to the "dangerous confusion" between the law on controls policy and the Government's own policy. With respect to actual scrutiny by the House of Commons, the Government's preference is to report annually on the state of strategic export controls, rather than parliamentary scrutiny of individual applications. This is due to concerns over parliamentary time and disclosure of contract details deterring overseas governments from purchasing UK goods. The Government envisages that the annual report will be examined by various Select Committees, which may lead to a parliamentary debate. No debate is guaranteed, however, and there is little evidence that the details of contracts will be subject to proper scrutiny.

In order to answer the need to enable UK controls to deal with modern forms of strategic transfers, the Government proposes controls on the trafficking and brokering of anti-personnel landmines, missiles capable of a range of at least 300 km, and equipment liable to be used for torture. In addition, it is proposed to impose controls over trafficking and brokering for those end-destinations and forms of equipment as fall under the purposes of strategic control as set out in legislation.

However, it is not proposed to impose controls on trafficking and brokering of all goods that are subject to export controls, the Government reasoning that resources for enforcement should be targeted on exports from the UK, as the most crucial and straightforward area. In addition, the Government believes that it is right in principle to rely on the controls of the actual exporting countries involved in cases of brokering and trafficking.

Although the strengthening of end-use monitoring is an election commitment of the Government, the White Paper contains no new proposals, the Government still reviewing various options. The possibility for controls in parallel with European Commission proposals are also under review, for military end-use controls on exports of dual-use goods to UN-embargoed destinations. Additionally, in recognition of the difficulties associated with controlling the export of dual-use goods, the Government is developing proposals for defining the connected terms "specially designed" and "for military use".  

One of the main lessons of the Scott Inquiry was for the need for Parliamentary oversight in matters concerning the arms trade. Although an essential element of accountability, a regular report as proposed by the White Paper only allows for debate after the fact; it would not be able to prevent dubious transfers from going ahead.

As a possible remedy to some of these deficiencies, a new Select Committee should be established, empowered to monitor military export controls, co-operation among Government departments and the compliance of companies involved in arms exports, its findings included as a commentary on the Government's own report. As well as providing a regular forum for contentious issues of Government policy to be gradually clarified and standardised, a guaranteed annual debate would secure an opportunity for specific concerns and inquiries to be raised by back bench Parliamentarians in an atmosphere of proper scrutiny and public attention.

Ideally, registered applications should be debated in parliament to enable prospective exports to be measured against the criteria set out in the EU Code of Conduct concerning the Arms Trade; a similar process occurs in the United States where Congress is given 30 days prior notification of US Foreign Military Sales. At a minimum this register should require all license applications from sensitive destinations to be set before a parliamentary Committee for scrutiny and debate, as is current practice in Sweden.

Despite the concerns raised by the Scott Report, it is still impossible to tell exactly what item of equipment each export licence covers. This is because the information is still given out in such broad categories; category ML10, for example, covers equipment ranging from combat aircraft to parachutes. This is not in accordance with the Government's aim of transparency and accountability of decisions. Until detailed information is given out as a matter of course, public debate will be based on suspicion and not fact.

Trafficking and Brokering

The Government's arguments in favour of weaker controls in this area fail to recognise that it is precisely the inadequacy of foreign export control laws that has damaged the wider aims of UK strategic export policy. By focusing on individual departmental costs, the White Paper encourages false economies with Government resources being targeted at cross-purposes. The DTI must focus on the end results of strategic export controls, and accept its responsibility in promoting Government policy as a whole.

In addition, if trafficking or brokering agents are found to have contravened the export control laws of the country in which they are based, there is a strong case that they should be made liable to prosecution, as is already the case in Germany, Sweden, Netherlands and Luxembourg.

End-Use Controls

The use of false end-use certificates for strategic export licenses is not uncommon, and there is currently little if anything in current certification requirements to prevent irresponsible end-users from using exported equipment for proscribed purposes. Despite the threat posed to the Government's ability to implement its policy on strategic exports, the White Paper makes no specific commitments towards how the Government intends to strengthen end-use monitoring, and there are no proposals for legal controls.

It is accordingly crucial that certification be given the status of a legally-binding contract, with clauses such that use of the equipment for proscribed purposes would constitute a breaking of the contract, with appropriate sanctions. Any intelligence gathered concerning licensing violations would be pursued by Customs alongside a system of spot checks; a right of inspection could be included as part of the export license, with refusal to permit verification of end-use certification being taken as evidence of undesirable practice, thus precluding export. The findings of such a comprehensive system of end-use monitoring and control should also be included in the annual report, enabling Parliament to evaluate the Government's implementation of its own policy on strategic exports.

Licensed Production

The foreign assembly of imported UK parts under license poses a number of problems to arms control, yet the issue has been omitted from both the White Paper and the EU Code of Conduct. This is despite cases such as Land Rover contributing 80% of the parts for Turkish-assembled Otakar light reconnaissance armoured vehicles, used for counter-insurgency and light-attack.

Accordingly, licensed production needs to include a system of follow-up checks, perhaps in conjunction with those monitoring end-use controls, with any cases of abuse to be included in the annual report.

Mercenaries

The White Paper does not address the provision of mercenaries by UK companies or citizens. In light of the recent Sandline/Sierra Leone affair, the Government ought to sign and ratify the December 1989 UN Convention against the Recruitment, Use, Financing and Training of Mercenaries, and bring UK legislation into line.

Security Training

An important area of opacity is the training of military, security & police (MSP) personnel, which works against the purpose of military training as set out in the recent Strategic Defence Review, as assisting in the development of democratically accountable armed forces.

My personal experience includes an eventually successful case lodged with the Parliamentary Ombudsman under the Code of Practice for Open Government. The previously denied information, concerning the training syllabuses for Indonesian military personnel, revealed that assurances as to the human rights element of MoD syllabuses do not stand up to close examination.

In order for MoD assistance programmes to be given the kind of informed scrutiny they need if they are to be measured against the guidelines dictated by an ethical foreign policy, details should be published for public inspection in advance of confirmation of an offer of training. Training by private companies is an particular area of concern due to the lack of controls, and the Government should establish a system of licensing for them.

Embargoes

There is no provision for the proposed annual report to monitor the observance and enforcement of embargoes. Details outlining progress in these areas is essential if the annual report is to serve as the basis for assessing the Government's implementation of its strategic exports policy and compliance with the EU Code of Conduct.

Encryption Technology

While not explicitly mentioned in the Government's proposals for controlling the transfer of technology by intangible means (section 3.2), there are concerns that controls intended for long-range missiles and weapons of mass destruction might be applied to encryption technology, as is the case in the United States.

Even if civil liberty concerns were somehow set to rest, any remaining law enforcement or national security needs for interception, surveillance and decryption would still have to be balanced against the risks of stifling legitimate commerce and of rendering it vulnerable to fraud and industrial espionage. In addition, arguments for controls on the export of encryption technology must take full account of developments allowing criminal or terrorist groups to communicate through the use of steganography, or data hidden in analog signals, without having to use conventional encryption technology.

Accordingly, it is essential that any proposals regarding controls on the export of encryption technology be put out to separate consultation, as well as being reviewed regularly in the light of the constantly developing technology.

Summary of Recommendations

• Establishment of a new Select Committee monitoring Strategic Export Controls;