|24/11/04|| Government powers which we should never have dreamed of granting|
|There can be few people who at the time of publication (Feb 15th 1996) or since have read the Scott Report in its entirety. At the time the press were anxious to focus on the exciting and revealing activities of dishonest Ministers, slyly worded inter-departmental memos, their authors and their motives and ultimately the UK Government policy at the time about selling weapons of terrible destruction to a maniacal dictator whilst doing its level best to conceal this policy from the electorate.
Consequently few have followed the interesting and somewhat hilarious tale that Scott lays out in the very first Chapter about Export Control Systems. (pages 49-105).
In the light of the recent introduction of the Civil Contingencies Act it is an interesting tale for any student of political chicanery.
On the outbreak of war in 1939 the Government provided itself with various powers to meet the needs of a country at war. One was the Import, Export and Customs Powers (Defence) Act, 1939 Command 69, usually referred to as the 1939 Act.
This 1939 Act, a wartime measure, with a minor amendment made in 1990 remains in force today and is the main legal source the Government has for controlling exports. The Act, Scott notes “is notable both for the breadth and the powers it confers on the Government and for the absence of any Parliamentary scrutiny of or control over subordinate legislation made pursuant to those powers”.
In Common Law, the Royal prerogative allows a general embargo and an offence of “trading with the enemy” which is a treasonable offence. In peacetime any such controls have always had to be based on Statutory authority. Up until the First World War, there were some controls but these were dispersed across various Statutes covering, Customs, Revenue and Finance Acts. On the outbreak of war 2 Acts entered the law that prohibited exports of “all and every description”. Gradually, after the war finished and prior to the 2nd World War, a series of licenses were allowed to be issued. These licences effectively allowed the Export or Import of goods that were otherwise illegal and most of these Orders, initially issued by the Privy Council and then by the then Board of Trade, had no process of revocation or variation, that is, their effect was originally designed to be perpetual.
The 1939 Act sought to consolidate these various powers and to, “facilitate the control of exports and imports in time of war”. Probably the most ill considered clause of the Act was,
“This Act shall continue in force until such date as His Majesty may by Order in Council (it was one of those which rescinded the House of Lords judgement that handed the Diego Garcia Archipelago back to it's native islanders and allowed the continued use by the USAF) declare to be the date on which the emergency that was the occasion of the passing of this Act came to an end and shall then expire…”
Scott says, that the 1939 Act had the merit of simplicity, the Act was for, “prohibiting or regulating, in all cases…the importation to and the exportation from…the United Kingdom”
As Oliver Stanley, the then President of the Board of Trade said, “No one, can question the great necessity in wartime for the most rigid control of both exports and imports”. Naturally there was no one of an opposite opinion. Having embarked on a war, they saw little need to consider over the trifle of when these powers so necessary in wartime, would eventually be taken away from the Board of Trade.
It must be remembered that Dingle Foot, did say, “we are all readily granting now to the Government powers which we should never have dreamed of granting in any ordinary time”.
What was of course notable was that there was no provision that orders under the Act were not to be subject to affirmation nor negative resolution, nor did such Orders have to be laid before Parliament. However such lack of Parliamentary control was not, in time of war a novelty. It is evident that it was never the intention that these uncontrolled, and some would say uncontrollable powers would ever survive into peacetime. That is not what happened.
Scott says about this lack of scrutiny by Parliament, “[it] is so clear a violation of the democratic constitutional principle…to be only justifiable by great emergency. War represented such an Emergency.”
The Board of Trade Journal in September 1945 explained that controls must continue because of the need to, “conserve supplies, prevent exports reaching the enemy and to share supplies of goods which we could ill afford to spare.” It must of course be remembered that the day after VE Day the American Government rescinded the Lend Lease Act and it is well known that the regime of rationing was greater within the UK after the war ended than during the worst of the war because of this. It was also the foundation of the post war Labour government's “Export or Die” campaign. If we did not export we could not import the food needed to feed us. It was also the foundation of what Jimmy Thomas called the “featherbedded”, and heavily subsidised agricultural industry.
As a consequence of the lack of automatic consideration to rescind the powers conferred on the Board of Trade the system of controls, although increasingly liberalised, remained. Such that in 1990 the then Department of Trade and Industry (DTI) outlined the need for continuing the controls by various and successive governments, because, “[they] serve a variety of policy purposes and may be for one or more policy reasons…controls are maintained for reasons of national and foreign policy and to give effect to various international obligations and commitments.”
These policies were listed and covered areas, deliciously and vaguely defined, including, “the protection of animal welfare”, “maintenance of national security”, and (very grandly) “the protection of our national heritage”. This last appears to cover the export of pictures of the Italian Renaissance, French Impressionists, and the various spoils of war and rapine, both military and personal, including the Elgin Marbles.
Douglas Hurd, the then Foreign Secretary, regarded the powers of the 1939 Act that in discussing the Iran (Temporary Powers) Bill in May 1980 he described it as “a blockbuster… Enabling the DTI to prohibit or regulate the import and export goods of any kind with no limitation of circumstances or extent.”
As a post war exercise, the various hastily enacted Statutes were re-examined and rescinded, amended or otherwise dealt with, this was necessarily in a shattered country an item of low priority, although in 1944 the Law Officers gave an Opinion about the date when the Emergency which gave cause to the Act had ended. After a legal and tortuous paper covering whether one date would suffice for all Acts, and the effects of the war on the Far East etc., they finally and collectively concluded (with the standard legalistic caution and circumlocution) that “there might be a strong case for arguing that the Act did not have to be brought to an end, although there had been a peace settlement”. The effect of this advice was to allow the Acts to continue in a so called “transitional” period.
In 1949 Sir Stafford Cripps was challenged about the need to rescind the 1939 Act now that hostilities had been ended by Sir J Mellor MP.He replied, “I cannot accept…that the emergency which gave rise to this Act has ended. Accordingly no Order in Council need arise at present.”
Things may have been left there but for a Mr Willcock. Mr Willcock was stopped on December 7 1950 while driving his car along Ballard's Lane, in Hornsey, London, by uniformed police constable Harold Muckle, who demanded to see the motorist's identity card.
Mr Willcock refused. Pc Muckle told him to produce the compulsory card at the local station with 48 hours. “I will not produce it at any police station,” Mr Willcock replied.
He was subsequently successfully prosecuted for failing to show a National Registration Identity Card as required under the National Registration Act 1939, another of the emergency Acts introduced on the outbreak of war. This caused some legal controversy and criticism of the Police, who Lord Goddard said, “the Act was passed for security purposes…[the Police] ought not to use, as they have done in this case, a security Act which was passed for a particular purpose”. It is apparent that the National Registration Act was being regularly used by the Police for purposes outside of those for which it had been enacted. At appeal 5 out of 7 Lords of Appeal upheld the view that each and every Act would require the laying of an Order in Council for its powers to be cancelled. And as this had not happened the Appeal was upheld. It did not affect Mr Willocks who had been found guilty in the first instance but granted an absolute discharge by the rough and ready-minded Justices in Hornsey.
Winston Churchill removed the need for Identity Cards in 1952. It must be to the eternal and lasting regret of the current Home Secretary Security Blunkett that Winston Churchill saw the absurdity of continuing with the need for Identity Cards.
Much the same criticism may be made of the recent Police use of Anti-terrorism legislation for arresting lawful protestors outside exhibitions of military equipment etc. Plus ca change. Another example; Anti-terrorist policing was called into question in 2001 when Lotfi Raissi, an Algerian pilot living in London, was released after being detained at Belmarsh high security prison for around five months. He was detained on the basis of an unsubstantiated FBI allegation that he had been involved in the attack on the World Trade Centre. On 21 April 2002, a judge ruled that there was no evidence whatsoever to connect him with terrorism.
However the case Willcock v Muckle subsequently formed the firm foundation for the belief by successive Governments that provided no Order in Council was laid, then the 1939 Act remained in force.
There the matter rested for many years, with the occasional re-surfacing of the issue without serious debate or result. It was an administrative convenience which enabled the Board of Trade (now the DTI) to continuously meddle in the affairs of exporters uncontrolled by Parliamentary oversight and frequently subject to the whims of ministerial oversight and matters of public policy.
In 1983 a problem arose over the import of milk from the newly formed European Community. A DTI note submitted to the Scott enquiry shows the concern in the DTI at the time that “risk that the 1939 Act may be challenged in court…which might diminish the legal force of the Act which is a vitally important legal power for reasons of general policy in other areas”.
In 1983 Chris International Foods Ltd sought judicial review of the refusal of the Secretary of State to refuse it a license to import 220 tons of bananas from the dollar area. This was an anomaly whereby, due to bilateral arrangements with new and emergent Caribbean nations the UK offered preferential treatment of their bananas. Consequently they could be sold at a premium price in the UK market. Chris Foods saw that if they could import from the dollar area in Southern America they could successfully undercut the West Indian sources. The Scott Report records that “anxious thought was given within Government to the need for remedial legislation in the event that the appeal [by Chris International] should succeed…”. In the event it was decided to let sleeping dogs lie.
An internal memo from Paul Channon at the DTI, unearthed by Scott, ruthlessly exposed the charade of the DTI powers. “that the 1939 Act had taken 20 minutes to pass through the House and the powers were based on the fiction that the emergency of 1939 had not ended”. He added, “any outsider would find this curious”.
Faced with the costs of appeal and the limited profits no doubt in the banana trade and facing the massed ranks of the Government and the DTI Chris Foods threw in the towel.
No further attention was needed and a collective sigh of relief could probably be felt in Whitehall. Orders to control imports and exports, continued to be made, amended and revoked without parliamentary debate or scrutiny. The position continued unchanged from 1983 to 1990. A period in which Scott identifies the omission by successive Governments to bring into effect the necessary Order in Council was deliberate, not inadvertent or due to oversight. It was he said damningly, “a reprehensible abuse of executive power by successive administrations”.
Elsewhere he says, “that the massive and essential powers had not been granted for use in peacetime, had never been authorised in Parliament for use in peacetime, and that subordinate legislation was not subject to Parliamentary control.
Curiously it was the looming German re-unification that made a nonsense of the idea that the “Emergency” which caused the Bill to be enacted was continuing. Leisurely nods and winks in memos revealed to Lord Justice Scott between departments and Ministers reveal a squalid scheme to ossify the powers of the 1939 Act by a short sharp amendment, changing Section 9(3) which would make the powers de jure and permanent.
The alternative was a full blown new Act detailing each and every power, subjecting it to troublesome Parliamentary scrutiny, ie. the democratic process. Not only that one minute shows, they were concerned that many of these powers would not be covered by EC regulations or under powers of the European Communities Act 1972.
The August 1990 Gulf Crisis added urgency to the proposals as it was evident that if challenged in court there was avery strong likelihood that the powers of the Act could be opened up for debate.
A single paragraph bill was drafted, to simply state that the powers within the Act be made permanent.
It was essential that this received Opposition support and the Minister Tim Sainsbury met Gordon Brown, then Opposition Shadow Minister for Trade. In preparation the Government had ready the possibility of introducing the requirement for a negative resolution procedure whereby Parliament could apply some scrutiny to Orders should the Opposition cut up rough.
Mr Brown and Joyce Quin (MP for Gateshead & Washington, Front-bench spokesperson on Trade and Industry from 1989 to 1992) kindly rolled over and agreed. Subsequently at the Scott Enquiry there was considerable memo shuffling and allegations about who said what to whom and when including un-recorded conversation in the Lobby of the House of Commons. However the result was that Mr Brown consulted Mr Kinnock and on 29th November 1990 the Bill received its second reading, Tim Sainsbury said, “it was essentially a technical measure. It does not affect the exercise of powers under the Act”… well up to a point Lord Copper, it made them permanent, for ever and ever.
Joyce Quin told the House that, “the Opposition did not object to the Bill”, she understood the problems especially in regard to the super gun affair. No other member spoke. Tim Sainsbury had risen at 6.40 pm, a time the House is more concerned about controlling their appetite than exports and imports. He pointed out that (for him, quite conveniently) he could not discuss the matters concerning the export of parts of the supergun to Saddam Hussein's regime as charges may be brought and the matter whilst not sub judice could not be discussed. 15 minutes later the Bill passed its 2nd reading, Committee, and 3rd Reading. It received Royal assent on December 6th 1990. The Government must have thought that Christmas had come early. No doubt the champagne flowed at the DTI as they looked forward to an endless vista of meddling in the business of exporting and importing companies, handing out their directions, diktats, Orders, licenses as they saw fit.
Mr Brown is now the Chancellor of the Exchequer and Joyce Quin a Minister at the Foreign Office (and Privy Counsellor 1998).
Of course it would be some years before Sir Richard Scott completed his enquiry and submitted his report to Parliament with it's sorry tale of lies, deceit, dishonesty, secret service chicanery, civil service stupidity and commercial greed which resulted in the UK Government supporting the sale of arms and arms making equipment to Saddam Hussein.
Perhaps the most important Recommendation that Sir Richard made is to be found at Vol IV, page 1759, Ch.2 K2.1 very near the end of his report and again probably never receiving the scrutiny that the press gave to the more squalid activities of Ministers and their Civil Servants in arming Saddam Hussein. It is probably best quoted in full.
“A comprehensive review is, in my opinion, required and long overdue, of the power of Government to impose controls on exports from the UK. The Government's statutory powers under the 1939 Act are based on wartime emergency legislation lacking the provisions for Parliamentary supervision and control that would be expected and are requisite in a modern Parliamentary democracy.”
He continues, with his opinion, “The present legislative structure, under which the Government has an unfettered power to impose whatever export controls it wishes and to use those controls for any purposes it thinks fit, should, in my opinion, be replaced as soon as is practicable.”
That was in 1996 since then, students of these matters might note that that in May 2001 the Select Committee on Foreign Affairs in their 7th Report stated, “The rump of the 1939 Act continues to give the Government draconian powers to control imports, for no stated purpose and without parliamentary control; a power to recover charges from those controlled which has never been used; a power to seize goods imported in contravention of orders made; and legal definitions of “enemy” and related terms.” Their italics.
In a second paper we will look at the Civil Contingencies Bill that is now law.