The Export Control Act 2002 was brought into force on 1 May 2004. The Act is the main UK legislation on export controls on military and dual-use goods.
The Export Control Act 2002 replaced the export control powers contained within the Import, Export and Customs Powers (Defence) Act 1939 on strategic export controls.
Among other things, the Act also provides for a more transparent framework and increased Parliamentary accountability.
The Export Control Act 2002 imposes controls on the exportation of goods, the transfer of technology, the provision of technical assistance overseas and activities connected with trade in controlled goods.
The Export Control Act 2002 aims to curb the spread of scientific knowledge on making weapons of mass destruction. Powers include
- controls on exports from the UK;
- controls on the transfer of technology from the UK and by UK persons anywhere, by any means (other than by the export of goods);
- controls on the provision of technical assistance overseas;
- controls on the acquisition, disposal or movement of goods or on activities which facilitate such acquisition, disposal or movement (this is often referred to as trafficking and brokering).
The Export Control Act 2002 gives the government rights to censor academic research and prohibits both external and internal (within UK) communications between scientists. Scientists should review their reviewing procedures (particular via web sites) among colleagues, particularly when developing crypto-analytic or code-breaking programs.
Export Control Act 2002 - in practical terms for exporters
The controls under the Export Control Act 2002 have a wide focus. Exporters need to be aware of their scope and have systems in place to ensure that they have an appropriate licence for their controlled exports or trade activities.
What is controlled?
In practical terms the Export Control Act 2002 controls:
- electronic transfers of technology and software for military goods
- transfers, by any means, of technology related to Weapons of Mass Destruction (WMD) or trade activities
- technical assistance in connection with a WMD programme
- trade (trafficking and brokering) in military, paramilitary and certain other goods between countries outside the UK (some trade controls apply to UK persons anywhere in the world, as well as to activities carried out wholly or partly in the UK)
- trade in military and certain other goods from any place outside the UK to specified destinations where either Organization for Security and Co-operation in Europe, European Union (EU), non-binding United Nations and national UK embargoes are in force.
- exports of certain high-activity radioactive sources
The Department for Business Innovation & Skills (BIS) circulates military equipment licence applications exports to the Ministry of Defence, the Foreign and Commonwealth Office and the Department for International Development and judged against the Consolidated EU and National Arms Export Licensing Criteria which were adopted in 2000. Depending on the nature of the application, decisions can be made at any level, from junior official in the case of the most routine to Cabinet, where it is controversial or where there is disagreement between departments.
Information about the number of licences granted to each country, though no detail on actual applications, is given Quarterly and Annual Reports. These Reports are examined by the House of Commons' Quadripartite Committee (Committees on Strategic Export Controls).
Compliance and record keeping
There are broad, minimum legal requirements for record keeping of export shipments covered by both export and trade controls. All exporters are advised to have systems in place to train staff and monitor licensable activities.
The Export Control Organisation (ECO) audits the use of OGELs via a continuous programme of compliance visits.
The legislation and the criteria themselves are not the problem, but the way they are interpreted. Although the latter include mention of human rights and conflict, this has not stopped sales to Saudi Arabia or Indonesia, to name but two.
In 2002, the Government added "factors" to the criteria to allow other considerations, including the UK's military industrial base, to be taken into account. This was in response to BAE Systems desire to sell components destined to incorporation in US-made jets being supplied to Israel and used against Palestinian civilians. Also, the Act allows for all brokering activities undertaken in the UK as well as by UK citizens anywhere in the world to be controlled. However, the detailed secondary legislation does not currently extend to UK citizens activities outside the UK except in a few specific cases.