Re-Export Controls Bill [HL]

My Lords, at the outset of my remarks, I pay tribute to Hannah Wright and Tom Donnelly of Saferworld, who have worked tirelessly to prepare background and briefing material for the Re-Export Controls Bill. Two weeks ago, they accompanied me to a meeting with the Minister—the noble Baroness, Lady Wilcox—and her officials, to whom I am grateful for their courtesy and willingness to engage in the issues raised by the Bill. We were accompanied by the right reverend Prelate the Bishop of Bath and Wells, who is a supporter of the Bill who had hoped to speak today but is a casualty of the Arctic weather conditions in Somerset. Perhaps I should also put on the record the names of some other noble Lords who are supporters of the Bill. The list, which reveals approval from all parts of your Lordships’ House, includes: my noble friend Lord Hylton; the noble Lord, Lord Judd; the noble Baronesses, Lady Kinnock and Lady Falkner; the noble Lord, Lord Chidgey; my noble friend the Earl of Sandwich; the noble Lord, Lord Steel; the right reverend Prelate the Bishop of Bath and Wells; the noble Baroness, Lady Morris of Bolton; the noble Lord, Lord Razzall; my noble friend Lady Cox; the noble Lord, Lord Selkirk; the noble Baroness, Lady Tonge; the noble Lords, Lord Morgan, Lord Lyell and Lord Bates; and, my noble friend Lord Hannay of Chiswick. I know that the noble Baroness, Lady Wilcox, will plead that the Bill is not necessary. She will doubtless argue that the Bill would create administrative burdens, that current end-user arrangements are satisfactory and that it would not add to what the United Kingdom is doing at present. I hope in my remarks to do two things: first, to set the scene and to show why this country needs to do all that it can, within its powers, to try to end the flow of arms into areas of conflict; and, secondly, to describe the purpose of the Bill. Civil servants invariably prepare briefs that argue against change and for the status quo, but I hope to convince your Lordships that this Bill would not only close a legislative lacuna but enhance our authority in the international arena as more comprehensive measures on arms control are considered. All the arguments for no change that will inevitably be advanced today can be countered by one decisive point: that re-export controls are used in many other jurisdictions, including—as the Minister confirmed yesterday in Answers to Written Questions that I tabled—other European Union countries, such as France and Germany, and in the United States, China and Russia. As supporters of the Bill have recognised, if such provision was deemed necessary by legislators in all of those other jurisdictions, what evidence has led the United Kingdom to a different conclusion? Also, if those provisions have not crippled their Civil Services with extra administrative burdens, why should similar provisions have that effect here? Private Members’ Bills are promoted in the hope of securing legislative change, but they have another important function, too. They create debate, challenge attitudes and influence policy-making. The Bill needs to be set in the context of the flow of arms into areas of conflict and against the backdrop of militias, genocidaires, child soldiers, warlords and whole regions, especially in Africa, that are awash with weapons. You do not need a weapons inspectorate to know what the weapons of mass destruction are in Africa; they are the small arms that you see everywhere. In September, I was in Southern Sudan, southern Ethiopia and the Turkana region of Kenya. In an Ethiopian village called Omorate I talked to Joseph Amukoo, who is now aged 14. He was shot on Christmas Day last year in Salan village where he was sleeping alongside three men. Joseph’s father is dead and his mother and brother had encouraged him to work with the men, to earn some money to support the family, in building a house. He comes from the Merille tribe. As they slept, they were set upon by Turkana warriors, who burst in just after midnight. Joseph’s companions were killed and Joseph, badly wounded with a bullet through his chest, was left for dead. The following day, he was airlifted to Kenya’s Kakuma hospital. Surgeons immediately operated and removed a bullet just centimetres from the boy’s heart. Still clearly traumatised by that terrifying experience, Joseph told me, ““At midnight I saw their shadows and as they entered I pretended to be asleep. After they shot me in the chest, thinking I was dead, they ran away. I was left alone. In the morning the police vehicle came and after the bodies were removed the police collected ammunition and began inquiries””. I asked Joseph what happened next. He said, ““They never found the men who shot me. This is normal””. What was their motive? ““They killed for revenge. Their family had also been killed, one month earlier in the village of Kokuro, so they came for revenge, simply revenge””. Joseph described the killers as, ““powerful warriors. They killed to show that they are powerful men””. Joseph’s story could be replicated countless times: a decade ago, in Southern Sudan, 2 million people died during the civil war there; 200,000 people have died in Darfur; the so-called Lord’s Resistance Army in northern Uganda was responsible for the deaths of more than 1 million people; another 1 million people died in the Rwandan genocide; and 6 million have died in the continuing conflict in the Democratic Republic of Congo. These deaths happen because weapons manufactured outside Africa are exported to the continent by unscrupulous quartermasters who care little about the suffering or misery caused by their trade. I was struck by some words from Hillary Clinton on 16 November, when the US Secretary of State made the point that this is not a historic problem but a contemporary one, even as we meet today. She said: "““We remain deeply concerned about Darfur. Violence is intensifying, human rights violations continue, arms flow despite the embargo, journalists and activists are arrested—some merely for speaking to members of this Security Council—UN peacekeepers are kidnapped. This is all unacceptable””." Those remarks followed reports in October that more than 50,000 weapons had been shipped into north and south Kordofan, elsewhere in Sudan, to supporters of President Omar al-Bashir. Bashir has, of course, been indicted as a war criminal for genocide by the International Criminal Court, yet the flow of arms into areas immediately in advance of January’s forthcoming referendum is continuing to destabilise the situation there. These small arms—man-portable weapons such as assault rifles, mortars, and grenades—are light and cheap tools that take a fraction of a second to fire, but their effects can be felt for a lifetime within families, communities and nations. Small arms have been a staple of all recent armed conflicts. They are available in abundance; no one knows how many of these weapons are currently deployed with armies, criminals and private security forces around the world, but estimates are in the hundreds of millions. In virtually all the armed conflicts currently dealt with by the United Nations, small arms and light weapons are the primary or sole tools of violence. Analysts estimate that around 2 million small arms and light weapons are still circulating in central America, 7 million in west Africa, an estimated 10 million in Afghanistan and millions in the Great Lakes region of Africa, where in the past 12 years an estimated 7 million people have been killed in the ongoing wars and humanitarian crises. With few exceptions, none of the countries where these weapons were used in recent armed conflicts actually manufactures them. In many cases, neither the manufacturer nor the exporter, nor even the buyer, really knows the purposes for which the weapons will be ultimately used because, unlike the trade in other categories of weapons, nearly 40 per cent of the trade in small arms is carried out through illicit means. The weaponising of communities, the growing use of children as soldiers, illicit mining and the use of rape as a weapon of war in places such as Congo, across the Great Lakes and the Horn of Africa are just a few examples of what is happening, but among other things these crises are sustained by the continued proliferation of small arms and light weapons. In modern conflicts, more than 80 per cent of all casualties have been civilian casualties, 90 per cent of which are caused by small arms. Stories such as Joseph Amukoo’s, which I have mentioned, and accounts of those who have witnessed or lived through these crises are shocking enough to melt a stone heart. As the former UN Secretary-General Kofi Annan said in his report on small arms, "““At least 500,000 people die every year as a result of the use of small arms and light weapons. Of the estimated 4 million war-related deaths during the 1990’s, 90 per cent of those killed were civilians, and 80 per cent of those were women and children, mostly victims of the misuse of small arms and light weapons””." The 2008 report, Global Burden of Armed Violence, commissioned by the Geneva Declaration on Armed Violence and Development, says that between 1990 and 2007 $300 billion was lost by 23 African countries as a result of violent conflict. That sum is roughly equivalent to the international aid that Africa received in the same period. If that money had not been lost due to armed conflict, it could have been used to solve the problems of HIV and AIDS in Africa or to address the many needs in education, clean water and sanitation and prevent tuberculosis and malaria. On average, armed conflict shrinks an African economy by 15 per cent, but that is probably a conservative estimate. A crucial point in the report is that around 95 per cent of the weapons used in those conflicts came from outside Africa. Although those were not all from re-exporting countries, or indeed from the UK, that figure highlights the fact that getting a handle on the irresponsible, illicit transfer of arms more broadly is essential. The same report says that more than 740,000 people die around the world each year as a result of armed violence. According to the World Health Organisation, as many as 10 times more people are injured. That includes an average of 52,000 violent deaths per year in armed conflicts and 200,000 a year who have died in conflict zones from non-violent causes such as malnutrition, dysentery or other easily preventable diseases that resulted from the effects of war on populations. Words cannot do justice to the detrimental effects that small arms and light weapons have on fragile and unstable societies. They have ruptured social cohesion; they divide families and people; they corrupt institutions and destabilise and eventually destroy societies and Governments. In doing so, small arms undermine the very social and economic fabric of our societies as well as damage the democratic functioning and constitutional arrangements of those places. I am of course not suggesting that all such arms originate in this country; equally, though, Britain’s trade in arms is truly global in scope and impact. Analysts claim that Britain and the other four permanent members of the UNSC, along with Germany and Italy, accounted for around 85 per cent of the arms sold between 2002 and 2009. This is roughly a $45 billion to $60 billion business. As a huge and major producer of arms, we have a special responsibility to do everything that we possibly can to regulate and control the flow of arms. Over a decade ago, Madeleine Albright, the former US Secretary of State, said: "““All of us whose nations sell such weapons, or through whose nations the traffic flows, bear some responsibility for turning a blind eye to the destruction they cause. And all of us have it in our power to do something in response””." The Bill is an opportunity to do something in response and is our opportunity to build on what has been done so far, to fill the current gaps and to match our well thought-out intentions with practical mechanisms that match our words. We are all acutely aware—let no one doubt—that through circuitous routes, and after changing hands many times, sometimes in collusion with traders in other contraband goods, small arms have been used in places far removed from their original places of regular supply. What would the Bill do? In many respects, I happily concede that the UK arms transfer control regime is among the most sophisticated in the world and that, as a country, we have led the international community in its progress towards establishing a global set of norms on the responsible transfer of military equipment. The Export Control Act 2002 and the subsequent Export Control Order 2008 were both significant steps in controlling the way in which our defence exports are controlled. Detailed risk assessments are undertaken for every licensing application to ensure compliance with the EU common position and the consolidated criteria. The Department for Business, Innovation and Skills publishes quarterly and annual reports on strategic export controls. I also welcome the publication of a new searchable database on UK arms licensing decisions. The UK is clearly among the leaders on transparency in arms transfers. The committee on export controls does an excellent job of scrutinising the Government’s decisions, but the one area in which the UK falls behind the other major arms exporters is the controls that we place on the re-export of our defence equipment. When countries decide to upgrade their defence systems and make major new purchases, they are faced with the question of what to do with their old equipment. Not surprisingly, one obvious option is to re-export those arms on to another buyer. The buyer is unlikely to be any of the world's great military powers, or those who seek to maintain a technological advantage by buying the newest, cutting-edge equipment or technology. Frequently, the prospective customers will be looking for relatively cheap equipment. Virtually by definition, they are in the market for second-hand goods. The US, France, China and Russia—all of the other permanent members of the Security Council—require any state that purchases their defence exports to seek permission from them before re-exporting those goods; that is what the Bill seeks to do for the UK as well. Including such a clause in export licences is a simple but effective way of reducing the risk of arms exports ending up in the wrong hands. The purpose of the Bill is to amend the Export Control Act 2002 to introduce such a requirement, which would bring the UK into line with all other major arms exporters on this issue. The Bill would insert a clause into UK export licences stating that the buyer of UK arms will not re-export them to any third party without seeking prior permission from the UK Government. The Government already place limited controls on the re-export of UK arms. The end-use declarations that buyers of our defence exports are required to sign include a clause that requires the buyer not to re-export to any state that is under embargo. This is clearly welcome, but altogether far too limited. There are many states that are not under embargo that the UK would have serious concerns about the re-export of arms to. Under the UK’s consolidated criteria, licences may be refused for many reasons: because the arms may provoke or prolong armed conflict; because they may be used for torture or other human rights abuses; or because they may threaten regional peace and stability, undermine development or threaten our national security. There is a long list of countries to which the UK has refused to license defence exports. In the last period for which licensing decisions have been published—April to June 2010—the UK refused licences for exports to, for example, Bangladesh, Chad, Indonesia, Israel, Nepal and Pakistan, none of which is under embargo. Indeed, licences were refused for exports to 41 different countries, of which only five are subject to either EU or UN embargo. Surely if we accept the principle, as the Government do, that the Government have good reason to forbid the re-export of arms to destinations of concern, we should apply that in all cases and not just some. In fact, a ““no re-export”” clause is all the more important where no embargo is in place. Where there is an embargo, states are already obliged under international law not to re-export. If states are willing to export despite an embargo being in place, it would seem highly unlikely that UK re-export provisions would constrain them. However, where no embargo is in place, the ““no re-export”” clause could make a real difference. I am aware that the coalition Government have made a commitment to promote UK defence exports as a key priority, so I want to make it absolutely clear that the Bill is not designed to restrict the UK’s ability to export. The Bill is concerned purely with the re-export of UK arms from which the UK receives no remuneration and no economic advantage. Therefore, I know of no reason why the Bill should pose a threat to British business. In fact, in the long run, having more robust measures to ensure that our exports do not end up in the wrong hands would help strengthen UK exporters’ reputation as responsible sources of military equipment. Nor would the Bill introduce any extra red tape for UK firms, as foreign buyers would come directly to the Government for permission to re-export. When the Government received such a request, they would need to assess the risk that re-export would pose. Although that would involve additional licensing activity, I understand from non-governmental organisations that have had discussions with officials in other European Union states—I have recently raised this issue with the noble Baroness—that the number of requests received is relatively few and the additional administrative burden therefore low, although those Governments have greatly appreciated having control over those that they have received. As I mentioned earlier, the UK has a thorough risk assessment process for such export licensing decisions. Among other things, the process includes an assessment of whether the buyer is likely to re-export the goods to a third party. Although that may suffice for detecting any immediate risk of re-export, in actual fact the buyer may not decide to re-export until years or even decades later, by which time circumstances may have changed in ways that could not have been anticipated at the time that the risk assessment was carried out—that is, before the items were originally exported. I gave the noble Baroness the example of four BN-2 Islander maritime surveillance aircraft that were exported from the UK to India in the 1970s. It was not until 2006 that the Indian Government decided to re-export the aircraft to Burma, an act which could not possibly have been predicted 30 years earlier. When the UK Government requested that India not proceed with the re-export, India felt able to ignore the UK request precisely because there was no contractual restriction on re-export. According to Sandeep Dikshit, writing in the highly regarded Indian broadsheet newspaper the Hindu on 4 February 2006, a senior Indian naval official was reported as saying: "““We should tell them where to get off””." This demonstrates two points. First, the possibility of future re-export cannot always be foreseen when a pre-licensing risk assessment is carried out. Secondly, if buyers have not signed a contract agreeing to seek UK permission before re-exporting, they have no reason to consider doing so. The other issue, of course, is enforcement. I understand that the Government's primary reservation about introducing re-export controls has been that they are difficult to enforce. Indeed, if a state decided that it was determined to re-export UK arms against the UK's wishes, there would be little that we could do to put a stop to it. However, re-export controls are not about forcing the bad guys to submit to British will but about working with legitimate, reasonable importers. I assume that importers of military equipment from the UK want to be seen not as irresponsible trading partners but as people who keep to the terms of their agreements. If they do not, one would hope that we would not export arms to them in the first place. Having said that re-export controls are not about enforcement, I should say that, if recipients decided to re-export against the wishes of, or without alerting, the UK Government, we would have many partners with whom we could share that information and who could subsequently factor that illegitimate behaviour into future licence decision-making processes. To sum up, there is a developing international norm supporting re-export controls as an important component of arms transfer control. Bringing the United Kingdom into line with that norm would strengthen the United Kingdom’s legitimacy in persuading states with weak transfer controls to improve their regimes. It would be unfortunate—indeed, verging on the inexplicable—if the United Kingdom, which has so often led the way on arms transfer controls, were to stand against this wholly favourable tide. The Bill enjoys widespread support in your Lordships’ House and in another place, right across the political divide. I ask the House to give the Bill a Second Reading. I beg to move.