Ranil Jayawardena MP Minister for International Trade King Charles Street Whitehall London SW1A 2AH T +44 (0) 20 7215 5000 E [email protected] W gov.uk Sir William Cash MP Chairman European Scrutiny Select Committee House of Commons London SW1A 0AA 10th December 2020 Dear Sir William, EM 12785/16, COM (2016) 616: Proposal for a Regulation of the European Parliament and of the Council setting up a Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast), Annexes and Impact Assessment As you know, the proposal from the Commission is to replace the Council Regulation (EC) 428/2009, which currently provides the legislative framework of EU export controls on dual-use items. The proposal intended to modernise and strengthen controls covering the export of dual- use items, taking account of the changing environment and evolving threats from technological changes. The Department for International Trade originally submitted an Explanatory Memorandum on this proposal on 17th October 2016 and after four years of discussion, the Council and European Parliament reached an agreement on the recast regulation on 9th November. We respect the interest of both parliamentary committees in this matter and, further to my Department’s last specific update of 16th March 2020, on the recast of the Dual-Use Regulation, I wanted to address the points raised by your Committee related to this when it was discussed in the Committee’s 27th report (Session 2019-21) on Wednesday 4th November. HM Government’s longer-term plans for the United Kingdom’s dual-use regime. We will keep the Dual-Use Regulation as retained by the European Union (Withdrawal) Act 2018 for the foreseeable future and amend it, as and when deemed necessary. HM Government will give consideration to the longer-term plans for the UK’s dual-use regime in due course. As set out in our letter of 16th March, there will be a need to make technical updates from time to time to the list of controlled dual-use items which are set out in Annex I of the retained regulation to implement changes to the international export control regimes’ control lists. This process of technical updates already happens under current legislation so would be a continuation of existing practice. Export controls were introduced primarily to control exports for strategic reasons to ensure the national and collective security of the UK and its allies. They have expanded to control exports for other reasons, including concerns about internal repression, regional instability or other violations of rights and responsibilities. We consider all reasons for having export controls with equal priority. HM Government’s preference is to maintain the established position whereby control lists are derived from the four recognised international export control regimes. Introducing new controls through this route maintains an international level-playing field for United Kingdom exporters. We will not grant an export license if to do so would be inconsistent with the Consolidated EU and National Arms Export Licensing Criteria (the “Consolidated Criteria”), including where we assess there is a clear risk that it might be used for internal repression. For the avoidance of doubt, the Consolidated Criteria are statutory guidance given under Section 9 of the Export Control Act 2002. At the end of the transition period, the Criteria will remain in force until such time as new or amended guidance is announced to Parliament. HM Government currently publishes more licensing data than any other country. We publish comprehensive Official Statistics every quarter and annually about export licences granted and refused. In addition, we provide a searchable database allowing users to produce bespoke reports drawing on this data, and we publish an annual report. Through this data both Parliament and the public are able to hold us to account. How HM Government plans to minimise future divergence between the regimes applicable in Great Britain and Northern Ireland Beginning on 1st January 2021 different rules will apply in Great Britain to those in Northern Ireland. EU Regulations and Directives relating to export control and listed in Annex 2 to the Protocol on Ireland/Northern Ireland will continue to operate in Northern Ireland. These are: • Council Regulation (EC) No 428/2009 of 5th May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items; • Council Directive 91/477/EEC of 18th June 1991 on control of the acquisition and possession of weapons; • Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14th March 2012 implementing Article 10 of the United Nations' Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition; • Directive 2009/43/EC of the European Parliament and of the Council of 6th May 2009 simplifying terms and conditions of transfers of defence-related products within the Community; and • Regulation (EU) 2019/125 of the European Parliament and of the Council of 16th January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. When the EU recast Regulation comes into force, there are no plans to mirror or copy-over the terms of the recast Regulation into our national legislation. While we will of course be able review the text, we need to be able to design our own rules, in our best interests, without the constraints of following EU rules. While the European Parliament and the Council have recently reached agreement on the recast of the dual-use regulation (as announced on Monday 9th November), the draft regulation has not yet been published. We will review the text when it is available to determine the extent of substantive divergence, if any between the legislation applied in Great Britain and that applied in Northern Ireland. While we would prefer there not be any divergence, some is likely to be unavoidable. Details of the number of such shipments that have taken place in previous years— between NI and GB—and information on the steps that Government is taking to assist and reduce future administrative burden caused by this change. Movements within the UK of items controlled by the dual-use regulation were not subject to export controls and were not recorded; we do not have past records of the number of shipments of controlled dual-use items from Northern Ireland into Great Britain as a result. Although the NI Protocol will mean dual-use goods will need an export licence from Northern Ireland, to Great Britain, the EU has proposed including the UK as a permitted destination on Union General Export Authorisation (GEA) No EU001. This will minimise the impact on Northern Ireland exporters as they will only have to register (if they have not already done do) to use this GEA to export the vast majority of controlled items in Annex I of the Dual-Use Regulation to the UK. Until we have had an opportunity to study the recast regulation, we cannot say what further administrative burden there may be nor what we might be able to do to minimise it. We will continue to keep your Committee informed of any progress. I am also writing in parallel with the same version of this letter to Lord Kinnoull, Chairman of the House of Lords European Union Committee and Christopher Johnson, clerk to the Lords EUC committee, to Angus Brendan MacNeil MP, Chairman of the International Trade Committee; Harriet Harman MP, Chairman of the Joint Committee on Human Rights; Simon Hoare MP, Chairman of the Northern Ireland Affairs Committee; Mark Garnier MP, Chairman of the Committees on Arms Exports Controls; to Les Saunders (Cabinet Office, Scrutiny Co- ordinator) and Edwina Osborne and Stephen Booth (Department for International Trade Scrutiny Co-ordinators). With best wishes. Yours sincerely, RANIL JAYAWARDENA MP Minister for International Trade .