The Arms Trade and the Constitution: Beyond the Scott Report
| Date | 01 July 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00159 |
| Author | Laurence Lustgarten |
| Published date | 01 July 1998 |
The Arms Trade and the Constitution:
Beyond the Scott Report
Laurence Lustgarten*
The Scott Report1covered an extensive range of matters, notably claims by
ministers of Public Interest Immunity as the reason for withholding evidence from
the defence in criminal cases, the structure and use of legal powers to control the
export of military and dual-use equipment, the use of foreign intelligence by
government departments, and ministerial accountability to Parliament. In addition,
it gives us a picture, unrivalled in detail, of how policymaking and administration
are carried out within the government of this country. But what in the long run may
come to be seen as the most important contribution of the Report, over and above
any of its particular recommendations,2is that it has altered the terms of public
debate. It has provided a baseline for popular judgement, a platform for critique,
and by implication at least, an outline of standards for how the political and
administrative elite which governs the nation ought to behave. In this sense the
Scott Report and the Nolan Report,3however different their specific subject matter
and the circumstances which gave rise to them, are very much in tandem. It is the
spirit, perhaps even more than the letter of the Report, which is its enduring
contribution.
That spirit I would describe as one of constitutional discipline. By that I mean a
requirement that government must follow proper procedures of ministerial
accountability and, in appropriate instances, ministerial responsibility, in carrying
out its policies.4If convinced that it is acting in the national interest, any govern-
ment is entitled to make a political choice to do something unpopular, and which its
critics may regard as unethical or inhumane. But if it makes that choice, it must be
open about what it has done. Put more bluntly, if it wants the pay-off, it must pay
the political price in criticism and possible unpopularity. Since as Peter Hennessey
has said, in the absence of a formal constitution, all we have is procedure, the
importance of this precept of constitutional discipline can scarcely be over-
The Modern Law Review Limited 1998 (MLR 61:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 499
* Faculty of Law, University of Southampton.
This article is an edited version of an Inaugural Lecture delivered at Southampton on 7 October 1997. I am
extremely grateful to Sir Richard Scott V-C for chairing the Lecture.
The analysis presented here benefited enormously from discussions with and information provided by
Elizabeth Clegg of Safeworld, and Dr Neil Cooper of the University of Plymouth, whose generosity with
their time and ideas I am pleased to acknowledge.
1 To give it its full title, the Report of the Inquiry into the Export of Defence Equipment and Dual-Use
Goods to Iraq and Related Prosecutions HC 115, 15 February 1996, in five volumes.
2 For a review and critique, I. Leigh and L. Lustgarten, ‘Five Volumes in Search of Accountability’
(1996) 59 MLR 695, and the Autumn 1996 special issue of Public Law.
3Report of the Committee on Standards in Public Life Cm 2850-I (1995).
4 The distinction between accountability and responsibility, with only the latter requiring that the
minister accept criticism when things go wrong, was put forward by the then Cabinet Secretary, Sir
Robin Butler, and accepted by Sir Richard Scott in the Report. However, Scott made an effective use
of the distinction in a manner quite different from what Sir Robin probably intended. See Scott
Report, n 1 above, paras K8.15–8.16; Leigh and Lustgarten n 2 above, 707–708. And see A. Tomkins,
‘A Right to Mislead Parliament?’ (1996) LS 63, 64–68.
emphasised. It is a way of ensuring that governments respect what may justly be
called a form of constitutional morality. This approach would be controversial
enough in any field of government activity, challenging as it does many of the
habits of a lifetime of those in power. Scott’s contribution is all the more valuable
because he has applied these standards to that area of activity most notable for
unbridled executive discretion, and for the unchallenged rule of the calculation of
economic interest and short-term political advantage: the borderland where foreign
policy, defence policy and considerations of supposed ‘national security’ converge.
Constitutional discipline and the arms trade
Yet maintenance of constitutional discipline must take account of context. By take
account, I emphatically do not mean that where there are strong counter-pressures,
constitutional morality and other ethical considerations must give way. Quite the
reverse: it means that one must take the full measure of the enemy.
The context of the Scott Report is the arms trade – the sale of weapons and
related military equipment.5I believe that the secrecy and deceit documented in the
Report were inseparable from the activity which produced them: they grew directly
out of the sale of articles of death to regimes that are violent, dictatorial, oppressive
of their own people, and often corrupt.6It is the government-assisted search for
profit in markets that are politically controversial – and the establishment of
political, commercial, and personal relations with individuals and governments
which cannot be acknowledged to one’s own citizens for fear of adverse reaction –
that make such abuses of parliamentary democracy inevitable.
The arms trade has been lauded for its economic, diplomatic and strategic
benefits, and damned for its destabilising effect on world politics, its debilitating
impact on the economies of poor purchasing countries, and of course for its
contribution to sustaining repressive regimes. The value of the alleged benefits to
exporting countries has also been questioned.7There is a significant literature of
high quality which takes up these issues, and I have no special competence to add
to it. What I would like to introduce into the debate is a dimension which has
largely been ignored.
This missing element is constitutional in the fullest sense: it is the effect on the
way we are governed, and on the human rights of everyone living in these islands.
Even if the disputed economic and strategic claims on behalf of participation in the
arms trade be accepted, they have never been adequately weighed against the
massive damage that participation in it inescapably inflicts on what truly deserves
to be called our national security. As Ian Leigh and I argued in our book, In From
the Cold: National Security and Parliamentary Democracy,8the protection of
5
In addition there are included ‘dual-use’ goods, such as machine tools, supercomputers, and high-tech
electronic equipment which have legitimate civilian uses but are capable of being adapted for military
purposes. Goods of this type were at issue in the Matrix Churchill prosecution. The Scott Report, para
D1.2, uses the phrase ‘defence related’ to cover this category. The narrower term ‘defence’ is limited to
military equipment other than weapons (eg missile guidance systems), whilst ‘arms’ means weapons only.
6 And, on occasion, potential military enemies of our own forces, as in the Gulf War.
7 Notably and most recently by N. Cooper, The Business of Death (London: I.B. Taurus, 1997) ch 6
(hereafter Business); see also his earlier pamphlet, ‘British Arms Exports: a vicious circle of
disadvantage?’ (Plymouth International Paper No 1, 1996) (hereafter ‘PIP’). Another piece in the
same vein which draws on the work of a number of academics is the pamphlet produced by Campaign
Against the Arms Trade, Killing Jobs (April 1996).
8 L. Lustgarten and I. Leigh, In From the Cold: National Security and Parliamentary Democracy
(Oxford: OUP, 1994).
The Modern Law Review [Vol. 61
500 The Modern Law Review Limited 1998
To continue reading
Request your trial