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B e f o r e :
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|Secretary of State for Trade & Industry
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Mr James Eadie & Mr Sam Wordsworth(instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 10 & 11 October 2007
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Mr Justice COLLINS :
"The consolidated criteria relating to export licensing decisions announced to Parliament by the Secretary of State on 26th October 2000 shall (until withdrawn or varied under this section) be treated as guidance which –
(a) is given and published under this section; and
(b) fulfils the duty imposed by subsection (3) in respect of any export controls … which may be imposed in relation to goods or technology of a description falling within paragraph 1 or 2 of the Schedule."
"Information to which this Article applies may be used for the purposes of, or for any purposes connected with-
(a) the exercise of functions in relation to any control imposed by this order or by any other order made under the Act;
(b) giving effect to any European Community or other international obligation of the United Kingdom;
(c) facilitating the exercise by an authority or international organisation outside the United Kingdom of functions which correspond to functions conferred by or in connection with any activity subject to control by this order or any other order made under this Act, and
may be disclosed to any person for use for those purposes."
Article 22(5) provides that 'nothing in this article shall be taken to affect any power to disclose information that exists apart from this article'. Schedule 1 includes, putting it generally, military equipment of any description, descending to very great detail in what is and is not subject to the licensing regime.
"An export licence will not be issued if the arguments for so doing are outweighed by the need to comply with the U.K.'s international obligations and commitments, by concern that the goods might be used for internal repression or international aggression, by the risks to regional stability or by other considerations as described in these criteria."
"In relation to resources, it should be noted that assessing whether information is confidential or otherwise too sensitive to be released is not always straightforward and inevitably time consuming. While information on one, or a group of, individual licensing decisions might not in itself be sensitive, it could become sensitive when associated with other aggregated information, for example, because the aggregated information for a specific destination or type of goods might reveal information about the Government's concerns in relation to that destination or those goods which cannot be disclosed for security or wider counter-proliferation reasons; or the confidential procurement decisions of a defence partner, which would damage the U.K's defence relationship with them. Thus the difficulties do not only arise where sensitive destinations are concerned."
"The House of Commons Select Committee on Strategic Export Controls (the Quadripartite Committee) has continued its scrutiny of export licensing decisions throughout the year. Since the last Annual report the Government has further refined the information passed to the Committee in the quarterly Reporting of our Strategic Exports, as well as the layout and format of the information provided. The Government has also continued its practice of making as much information as possible available to the Committee in response to its requests. Every effort is made to ensure that as much information as possible is made public."
Questions were asked at some length and in some detail by the Committee of the Ministers who gave evidence. The first joint reports for 2005 – 2006 and 2006 – 2007 published in July 2006 and July 2007 respectively were before me. The reports contain certain criticisms and recommendations. They recognise that the Committee can only review a very small proportion of the Government's decisions on licence applications, but the purpose of its questions is 'to ensure effective scrutiny of government policy and operations in an area which affects U.K. business and security as well as the lives of millions across the world'. And there is no reason why a member of the public should not draw a member's attention to a particular SIEL about which he has concerns. It is clear from the transcript of hearings that there was rigorous questioning in particular on exports to Israel. Paragraph 32 of the July 2006 report recorded:-
"32. We received evidence on the content of the annual report from the U.K. Working Group on Arms, who have extensive experience of examining the data in annual and quarterly reports. They explained the problems they had analysing the data on export licences:
Criticism regarding U.K. strategic export practice typically focuses on a limited number of licences to a limited range of destinations. But it is in no-one's interest that the Government is subject to criticism for arms transfer licensing decisions that, if more information were publicly available, would not be regarded as problematic. As one way of avoiding spurious objections to the Government's decisions, it might therefore prove useful for the annual report to include a brief narrative explanation of the Government's export licensing practice for certain destinations either where this has been subject to criticism or where the Government anticipates that criticism may be forthcoming. Such a narrative could include:
(a) a statement on the general arms transfer control approach or policy toward the recipient state, along with any policy changes that have occurred over the year;
(b) summary information on the types of transfer authorised during the reporting period and an explanation of how these reflect the Government's stated commitments.
Our own experience in scrutinising the Government's decisions and policy on strategic export controls in the annual and quarterly reports chimes with that of the U.K. Working Group.
33. We identify two additional areas where improvements to the annual report would assist scrutiny. First, section 1 of the 2004 Annual report, "Policy Issues Relating to Strategic Export Controls", provides an overview of policy with a focus on recent international developments. The section would be of greater assistance if it were expanded to provide an assessment in general terms of the effectiveness of strategic export control policy during the year covered by the report and an analysis of the market and the demand for goods and technologies subject to export control. (We accept that it would not be advisable to highlight gaps in the report, and request this information be supplied under a security classification to the Committee.) We found it instructive to compare the Annual report on Strategic Export Controls with the Government's 2005 Human Rights Annual report, which gives as its objective:
To provide detailed information for Parliament and other specialised readers outside Government on the FCO's activities over the past year to promote human rights abroad. At the same time we want this report to be accessible to non-specialist readers who have a general interest in foreign policy or human rights. But whoever the reader, the report has the same objective: to provide those outside the Government with a tool to hold the Government to account for its commitments.
We conclude that the Human Rights Annual Report and its objectives provide an exemplary model for improvement to future annual reports on strategic export controls. We recommend that the Government take the Human Rights Annual report as a model for making improvements to the content of future annual reports on strategic export controls."
Paragraph 155 of the same report recommends the Government to 'explain in future annual reports the reasons for granting licences for exports to countries on the list headed 'Major countries of concern'. This list includes Israel. Israel is specifically dealt with in paragraphs 156 to 160. There are relevant criticisms in paragraphs 158 to 160 which read:-
"158. Whilst we are grateful for the Minister's candour in explaining his difficulties in taking decisions on exports to Israel, we do not understand what the policy means. We cannot, for example, see that there is a class of equipment or technology that fits the definition "aggressively deployed" in the occupied territories. We recommend that the Government explain the policy – that no weapons, equipment or components which could be deployed aggressively in the Occupied Territories will be licensed for export from the U.K. to Israel – in its reply to this Report. It would assist us if the Government gave examples of the equipment to which, in the light of the policy, it has refused to grant export licences.
159. The Minister explained that the Government:
Look[s] very carefully at the way in which any equipment that has been exported is used and it is an area and two countries that are under very, very intense observation. We have very good teams in Tel Aviv and Jerusalem and we watch very, very carefully what is going on.
160. We recommend that the Government explain how the teams in Tel Aviv and Jerusalem who are observing the use to which exported equipment is put carry out their work and how their work differs from end-use monitoring."
"329. We can see the strength of both Saferworld's position and that of the Government. We have also had the advantage to request additional information when we identify an export that appears questionable in an Annual or Quarterly report on Strategic Export Controls. We are pleased to be able to say that in nearly all the cases the Government has produced a satisfactory answer – often along the lines of that given by Ms Leslie. In our view a significant part of the problem is the opaque manner in which these exports are presented and the obfuscating and frustrating terms in which the Government seeks to justify its decision to grant, or withhold, licences. When an interested party notes, for example, the export of armoured vehicles to a government with a poor human rights record it is entirely understandable that he or she is concerned that the export may be used for internal repression. When a question is put to the Government the habitual reply is: all applications are considered on a case by case basis against the Consolidated EU and National Export Licensing Criteria. Any licence which we assess is inconsistent with the Criteria will be refused. The answer provides no information and asks the questioner to take the Government's decision to export (or withhold) arms on trust. We remind the Government of one of the conclusions of the Scott Report:
Without the provision of full information it is not possible for Parliament, or for that matter the public, to assess what consequences, in the form of attribution of responsibility or blame, ought to follow. A denial of information to the public denies the public the ability to make an informed judgment on the Government's record. A failure by Ministers to meet the obligations of Ministerial accountability by providing information on their departments undermines, in my opinion, the democratic process.
330. We note that Criterion 2 requires the exercise of "special caution and vigilance in issuing licences, on a case by case basis". In our view this means the Government must examine each application for an export licence on its merits. It is not a cloak to throw over every decision to prevent scrutiny of the Government's reasons for issuing or withholding an export licence. We recommend that the Government provide firm and explicit answers to questions about its decisions to grant, or withhold, export licences for goods or technology which could be used for internal repression in countries where human rights are abused.
331. Exports to a group of countries which include Israel, Saudi Arabia and China show the lack of transparency in the interpretation of the EU Code of Conduct on Arms Exports at its most stark. The reasons for refusal are not published and so may encompass some or all the Criteria in the EU Code of Conduct on Arms Exports. This of itself is an indication of lack of transparency."
There is one further extract I should refer to. Paragraph 340 reads:-
"340. We recommend again this year that the Government explain its policy on licensing exports to Israel, Jordan or other countries in the Middle East and that it explain whether it has adjusted its policy since 1997 as events in the Occupied Territories and Middle East have unfolded. We further recommend that Government explain how it assesses whether there is a "clear risk" that a proposed export to Israel might be used for internal repression (for the purposes of Criterion 2)."
"I prefer to begin by looking at the question in the round, and inquiring what requirements of fairness, germane to the present appeal, attach to the Home Secretary's fixing of the penal element. As general background to this task, I find in the more recent cases on judicial review a perceptible trend towards an insistence on greater openness, or if one prefers the contemporary jargon "transparency", in the making of administrative decisions. "
This was in the context of ensuring that a prisoner should know what criteria were applied in fixing a tariff period for his life sentence and should be able to make representations about it. Mr Fordham also relied on a decision of the ECt, Kuijer v Council of European Union (No 2)  1 W.L.R. 1941. That case concerned a request by the applicant for access to various documents pursuant to a Council Decision 93/731/EC on public access. At paragraphs 52 & 53 on p.1950, the Court observed:-
"52. It is first necessary to point out that the principle of transparency is intended to secure a more significant role for citizens in the decision-making process and to ensure that the administration acts with greater propriety, efficiency and responsibility vis-à-vis the citizens in a democratic system. It helps to strengthen the principle of democracy and respect for fundamental rights: see, to that effect, The Bavarian Lager Co Ltd v Commission of the European Communities (Case T-309/97) ECR II-3217, 3234-3235, Paragraph 36.
53. Moreover, when the Council decides whether the public interest may be undermined by releasing a document, it exercises a discretion which is among the political responsibilities conferred on it by provisions of the Treaties. In those circumstances, review by the Court of First Instance must be limited to verifying whether the procedural rules have been complied with, the decision at issue is properly reasoned and the facts have been accurately stated, and whether there has been a manifest error of assessment of the facts or a misuse of powers."
However, the principle of transparency referred to there is given effect through the Council Decision. That applies to the Council and is not an overriding principle which binds the domestic courts of Member States.
"Their Lordships now turn to the alternative approach, that of the common law. In its most general form the argument proposes that there should be a general obligation on all decision-makers to give reasons for their decisions. The advantages of the provision of reasons have been often rehearsed. They relate to the decision-making process, in strengthening that process itself, in increasing the public confidence in it, and in the desirability of the disclosure of error where error exists. They relate also to the parties immediately affected by the decision, in enabling them to know the strengths and weakness of their respective cases, and to facilitate appeal where that course is appropriate. But there are also dangers and disadvantages in a universal requirement for reasons. It may impose an undesirable legalism into areas where a high degree of informality is appropriate and add to delay and expense. The arguments for and against the giving of reasons were explored in the Justice-All Souls report "Administrative Justice: Some Necessary Reforms" (1988). Another summary can be found in Reg v Higher Education Funding Council Ex Parte Institute of Dental Surgery  1 W.L.R. 242, 256.
The trend of the law has been towards an increased recognition of the duty upon decision-makers of many kinds to give reasons. This trend is consistent with current developments towards an increased openness in matters of government and administration. But the trend is proceeding on a case by case basis (Reg v Kensington & Chelsea Royal London Borough Council Ex Parte Grillo (1995) 94 L.G.R. 144), and has not lost sight of the established position of the common law that there is no general duty, universally imposed on all decision-makers. It was reaffirmed in Reg v Secretary of State for the Home Department, Ex Parte Doody  1 AC 531, 564, that the law does not at present recognise a general duty to give reasons for administrative decisions. But it is well established that there are exceptions where the giving of reasons will be required as a matter of fairness and openness. These may occur through the particular circumstances of a particular case. Or, as was recognised in Reg v Higher Education Funding Council, Ex Parte Institute of Dental Surgery  1 W.L.R. 242, 263, there may be classes of cases where the duty to give reasons may exist in all cases of that class. Those classes may be defined by factors relating to the particular character or quality of the decisions, as where they appear aberrant, or to factors relating to the particular character or particular jurisdiction of a decision-making body, as where it is concerned with matters of special importance, such as personal liberty. There is certainly a strong argument for the view that what were once seen as exceptions to a rule may now be becoming examples of the norm, and the cases where reasons are not required has not been departed from and their Lordships do not consider that the present case provides an appropriate opportunity to explore the possibility of such a departure. They are conscious of the possible re-appraisal of the whole position which the passing of the Human Rights Act 1998 may bring about. The provisions of Article 6(1) of the Convention on Human Rights , which are now about to become directly accessible in national courts, will require closer attention to be paid to the duty to give reasons, at least in relation to those cases where a person's civil rights and obligations are being determined. But it is in the context of the application of that Act that any wide-reaching review of the position at common law should take place."