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Announcement of an informal consultation on amending the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order (“the Order”) to implement provisions of Council Regulation (EC) No. 1236/2005 concerning trade in goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (“the Regulation”)[1] which is directly applicable in all EU Member States.
Comments should be made by 31 January 2006 (see below for details).
Amendments to national secondary legislation will enable enforcement of the directly applicable Regulation and also provide provisions for licensing and penalties, which are not contained within the Regulation.
A summary of the changes being proposed to the Order can be found at Annex A together with the initial Regulatory Impact Assessment at Annex B; both annexes can be found at the end of this Notice.
Exporters can get a copy of the Regulation from the Official Journal at the EU website in the right hand column.
ECO's earlier Notices on this subject can be found in the right hand column.
The Regulation, which comes into force on 30 July 2006, is intended to:
The UK position is that, the proposed amendment to the Order should be given strong support as it is needed to implement fully the provision of the Regulation. The Regulation itself is consistent with stated UK objectives to have a European wide ban on the export of equipment used in torture to bring other EU Member States into line with similar ban which has been in place in the UK since 1997.
The Initial Regulatory Assessment has not identified any additional costs associated with this proposal, or potential unintended consequences. Therefore, in line with the Cabinet Office Code of Practice on Consultation, the DTI has decided to use its discretion and hold this informal consultation with possible interested parties.
A previous prior informal consultation and regulatory impact assessment to inform the negotiations of the Regulation was undertaken in 2004.
Opportunity to participate
We are interested in your views on the proposals to amend the Order in order to fully implement the provisions of the Regulation. We would welcome comments by 31 January 2006.
Please submit your views by post, fax or email to:
Jim Bouttell
Policy Unit
Export Control Organisation
66-74 Kingsgate House
London SW1E 6SW
Fax: 0207 215 4510
email: jim.bouttell@dti.gsi.gov.uk
Questions to consider
Our initial assessment is that the proposal is likely to have a negligible effect on business because
However, if nothing was done, the goods would still be controlled by the Regulation which has direct effect. Therefore without national implementing legislation there would be no scope for issuing licences and this would have the unintended effect of imposing a complete ban on goods with legitimate uses (eg over-sized handcuffs, historical items for display in museums). This would clearly be detrimental to any exporter who would otherwise have been issued a licence.
We would welcome comments on this assessment, set out in the initial Regulatory Impact Assessment.
Do you believe that the proposed amendments to the Order will have a significant impact on competition or profitability?
If you are a small to medium-sized enterprise, what costs or other burdens are associated with the introduction of the amendments to implement certain provisions the Regulation.
Are there any consequences of these amendments to the Order, which have not been anticipated?
Enquiries
If you have any questions, or would like any further information on this informal consultation please contact Jim Bouttell (see under Opportunity to participate above).
If you have comments or complaints about the way this informal consultation has been conducted, these should be sent to:
Nick Van Benschoten
Consultation Co-ordinator
DTI Better Regulation Team
Bay 4113
1 Victoria Street
London SW1H 0ET
Tel 020 7215 6206
nick.vanbenschoten@dti.gsi.go.uk
Code of practice on consultations
Informal consultation is discussed in the Introduction to the Code of Practice on Consultations. This may be viewed at the Cabinet Office website in the right hand column.
Export Control Organisation
Department of Trade and Industry
2 November 2005
ANNEX A
Summary of the proposed amendments to the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 (“the Order”) to implement provisions of Council Regulation (EC) No.1236/2005 concerning trade in goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (“the Regulation”)
The Regulation has direct effect in all EU Member States and therefore will provide the main legal basis for export control. However, the Regulation does not include the provisions needed for licensing, penalties or the adoption of optional provisions, these must be provided by individual EU Member States by national legislation means.
Therefore, in the UK amendments will need to be made to the Order to ensure that these provisions are implemented and that where there is an existing national control in place that the Order is amended to ensure there is no overlap with those controls – directly applied through the Regulation.
Those amendments will involve changes related to
Licensing provisions
Article 12 provides for the Secretary of State to grant licences and Community Licences. This section will need to be amended to also provide for the issuing of licences under the Regulation.
Enforcement provisions
Articles 19 to Article 22 cover Customs powers and the applicability of the Customs and Excise Management Act these will need to also apply in respect of the Regulation.
Penalties
Articles 16 to 18 cover offences and penalties, misleading information and failure to comply with licence conditions additions will need to be included to ensure that, where appropriate, these will also apply in respect of the Regulation.
National options
Article 7(1) and 7(2) of the Regulation make provision for national authorities to take action as follows:
Provisions will need to be made in the Order to make those goods under (1) above subject to national control when exported to all destinations including EU Member States.
Provisions will need to be made in the Order to make those goods under (2) above (those exceeding 240mm and up to 280mm) subject to national control to all destinations including, if considered necessary, export to other EU Member States.
Further consideration will also need to be given on whether to maintain a national control on the export to all destinations of electric shock dart guns having a no load voltage of 10000v or below.
Removal of national control where goods controlled by the Regulation
The Regulation will, from 30 July 2006, control the export from the European Community of a number of goods which are currently controlled at a national level under the Order. Therefore it will be necessary to amend the Order to remove the following entries from Schedule 1
Transit
Article 11(11) of the Order identifies those goods and destinations, which do not benefit from the exceptions for transit controls. However, the Regulation states that an authorisation is not required for those goods in Annex III to the Regulation, which only pass through the Community, therefore Article 11(11)(b) will need to be amended to remove those controls.
General References
In addition to specific changes required to implement provisions of the Regulation there will need to be, as a consequence of implementing provisions of the Regulation through the Order, references made in various general Articles to the Regulation including, Article 2 (Interpretation), 5 (goods in transit), 10 (Technical Assistance) and 14 (Record Keeping).
November 2005
ANNEX B
Draft Initial Regulatory Impact Assessment
1. Title
1.1 Amendment to The Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 (“the Order”).
2. Purpose and intended effect
2.1 Purpose
2.1.1 To provide implementing legislation in order to provide licensing, enforcement and penalty powers for a directly applicable Council Regulation concerning trade in certain equipment and products which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. (“the Regulation”) which was adopted by the Council on 27th June 2005.
2.1.2 The Regulation bans the import and export of listed equipment that could only be used for torture or capital punishment, and introduces a licensing system for other equipment which could be used for torture but have other, legitimate uses.
2.1.3 The Regulation affects imports, exports and technical assistance related to the list of goods which are to be banned (Annex II to the Regulation) but only exports of goods subject to control (Annex III to the Regulation).
2.2 Objective
2.2.1 To set up a specific trade regime (for both import and export) directly applicable in all EU Member States to contribute to the prevention of the violation of the fundamental human right not to be subjected to torture and other cruel, inhuman or degrading treatment consistent with stated EU policy.
2.2.2 The Regulation does not impact on the UK Trade controls other than to change the control entry references.
2.3 Rationale for Government intervention
2.3.1 The Commission considers the Regulation would be consistent with the guidelines on EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment adopted by the Council on 9 April 2001. which state that the EU will urge third countries to prevent the use, production and trade in such equipment . Therefore the Commission considers that the EU should itself take the same measures that it urges third countries to take.
2.3.2 The Regulation is directly applicable in all EU Member States. However, provisions for licensing penalties and enforcement must be implemented at a national level.
2.4 Background
2.4.1 The UK extended its national ban on certain torture equipment in 1997 following Robin Cook’s statement to Parliament in July 1997. The EU Regulation, which introduces controls on certain equipment and products used for capital punishment or torture to all 25 Member States, some of which are already subject to national controls, is consistent with UK’s objective to press for a global ban.
2.4.2 The current national legislation in which certain torture equipment, as set out in the Regulation, is controlled is The Export of Goods, Transfer of Technology and the Provision of Technical Assistance (Control) Order 2003, Trade in Goods (Control) Order 2003 and Trade in Controlled Goods (Embargoed Destinations) Order 2004.
2.4.3 The Secretary of State for Trade and Industry is responsible for trade policy and is the Government’s export licensing authority, however the Secretary of State for Foreign and Commonwealth Affairs has responsibility for human rights issues whilst the Chancellor of the Exchequer (in respect of HM Revenue and Customs) and the Home Office would also have an interest.
2.4.4 An earlier RIA in respect of the Council Regulation , which was endorsed by Ministers on 1 November 2004, was submitted to the Commons and Lords EU Scrutiny Committees in support of an Explanatory Memorandum.
2.4.5 UK national Trade controls are not materially affected by the adoption of the Regulation although amendments will be necessary to reflect the change to the control entries of certain goods as a consequence to the adoption of the Regulation.
3. Consultation
3.1 Government departments with an interest in the Regulation were consulted and kept informed of the developments during the negotiations for the Regulation. They will also be consulted in respect of the implementing legislation.
3.2 Ministerial endorsement of the final negotiated proposal was sought and given prior to the Regulation being adopted by the Council on 27th June 2005.
3.3 There had been general consultation with interested parties, including possibly affected industry sectors on the original Regulation proposals via a Notice placed on the Export Control Organisation’s website which, is widely accessed by the export community and automatically circulated to registered users. In addition there was extensive consultation undertaken with various interested parties during the consultation phase of implementation of related controls under UK national secondary legislation made under the Export Control Act.
3.4 A further round of consultation will be undertaken with industry, including further Notice’s on the ECO’s website, to explain the implementation of the Regulation and it’s impact on trade.
4. Options
Option 1
Do nothing
Option 2
Make an Order, under powers in sections 1,3, 4 and 7 of the Export Control Act, amending the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order, (this would include any necessary amendments to the Trade in Goods (Control) Order 2003 and the Trade in Controlled Goods (Embargoed Destinations) Order 2004).
Option 3
Raise a freestanding Order specifically to implement required provisions of the Council Regulation.
5. Benefits
Option 1
As the Regulation is directly applicable it will become law in all EU Member States on 30 July 2006. Without national implementing legislation these goods will still be controlled but without any national ability to issue licences if appropriate. This would effectively mean a complete prohibition on everything controlled by the Regulation and would be detrimental to those exporters who may otherwise be able to export. This option would also be contrary to the provisions of the Regulation, which requires authorities to take decisions on a case by case basis taking into account all relevant considerations.
Option 2
All the necessary implementation provisions would be contained within a single piece of legislation, and fully meet the requirements and provision of the Regulation.
Option 3
Like option 2 this would meet all the necessary implementation provisions to fully meet the requirements and provisions of the Regulation. However, separate amendments to existing legislation would still have to be made.
6. Compliance costs for industry
Option 1
As this would effectively introduce a total ban on all the listed goods it would have a detrimental effect on those exporters who currently legitimately export these goods. The costs to industry would be in respect of lost orders and/or penalty clauses due to their inability to supply.
Option 2
Likely to have only a negligible impact on industry costs. Because of the types of goods covered it is very unlikely that many companies with be involved. Those companies which are exporting, are likely to already require licences under current national export control legislation. Therefore additional costs are likely to be minimal.
Option 3
Same as option 2.
7. Affected Business Sectors
7.1 Apart from those exporters who are currently caught by the existing UK national controls on certain types of goods which could be used for torture such as handcuffs, leg-irons, stun guns we have been unable to identify any significant supplier or exporter which would be adversely effected by the Regulation and subsequent implementing legislation.
8. Other Costs
8.1 It is unlikely that the implementation of the Regulation would generate anything other then minimal additional Government costs. We already have in place export controls on certain equipment used in torture and trade controls on trafficking and brokering. The legislative framework for implementing any licensing or enforcement activities envisaged by the proposed Regulation are already in place. Any additional licensing requirements are likely to be able to be accommodated within existing resources or where extra procedures are required with a minimum of extra costs.
9. Small Firms Impact Test
9.1 At the time of completion of the earlier RIA despite enquiries we had been unable to identify any significant small businesses involved in the import or export of goods banned under the provisions of the Regulation. A Notice to Exporters was published on the ECO’s website in July and August 2003 notifying firms of the proposals including a draft Regulatory Impact Assessment , asking for comments and whether they were likely to be effected but none responded. Discussions at that time on the proposals with the Small Business Service confirmed that there was unlikely to be an impact on small firms as a result of the proposal.
9.2 Two further Notices have now been issued, the first confirming the adoption of the Regulation and followed up by a second more detailed Notice outlining the practical effect of the Regulation. A number of industry contacts including Trade Associations have also been approached with a view to identifying potential exporters.
10. Competition Assessment
10.1 Where there is currently trade in the goods proposed to be banned under the Regulation this is likely to be for export only as there is little or no EU market. While some of the component parts may be standard, such as ropes or chains, the completed products are specialised and therefore those seeking to purchase the equipment will do so from different countries. In these circumstances the potential market for such goods will be international rather than UK or EU wide.
10.2 Some of the goods identified within the Regulation are already subject to a UK ban and therefore extending the ban throughout the EU would have no effect on UK business. Where the Regulation introduces a ban on goods which are not subject to current national control this will be applied across the EU and remove any commercial trade on such goods.
10.3 Where the Regulation introduces export controls on goods, licensing will be considered on a case by case assessment against stated criteria which will be consistent throughout the EU.
11. Enforcement, sanctions, monitoring and review
11.1 There are no enforcement, sanctions or monitoring provisions within the proposals . These will fall to Member States acting under national legislation. In the UK, enforcement would be principally under the Customs and Excise Management Act 1979. Some provisions would also be required under secondary legislation made under the Export Control Act.
12. Summary of Recommendations
12.1 Option 1 is not feasible given that it will have the greatest impact on industry by effectively banning all exports and is likely to be contrary to the provisions of the Regulation.
12.2 Options 2 and 3 have equal merit but Option 2 would minimise the number of changes needed to existing legislation and therefore would be the recommended option.
November 2005
[1] Council Regulation (EC) No.1236/2005 (Official Journal L200, 30.7.2005.p1)
