Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003

Explanatory Note

(This note is not part of the Order)

This Order, made under the Export Control Act 2002, establishes a new framework for the control of strategic goods, software and technology. This Order brings together controls on the export or transfer of military and dual-use goods, software and technology, controls on goods, software and technology related to weapons of mass destruction (WMD) and the provision of WMD related technical assistance. The controls in this Order apply to persons in the United Kingdom and in respect of certain provisions, to United Kingdom persons anywhere in the world.

The Order consolidates existing controls on the export of military goods, software and technology in physical form, previously provided for by the Export of Goods (Control) Order 1994 (S.I. 1994/1191), with the provisions of the Dual-Use Items (Export Control) Regulations 2000 (S.I. 2000/2620)) (the DUEC). The DUEC gave effect in the United Kingdom to certain provisions of Council Regulation (EC) No. 1334/2000 of 22 June 2000, (O.J. No. L 159, 30.06.2000 p.1.) which set up a Community regime for the control of exports of dual-use items and technology (the Regulation).

Military and para-military goods, software and technology whose export or transfer is controlled are specified in Schedule 1 to this Order. Dual-use goods, software and technology, the export or transfer of which, are controlled in addition to those set out in the Annexes to the Regulation, are specified in Schedule 2.

This Order imposes WMD end-use controls on “any relevant use” in connection with WMD. A relevant use is any use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of delivering such weapons.

In addition to the consolidation of existing export control provisions, the Order also introduces the following new controls on:

(a)

the transfer of listed military technology in Schedule 1 by electronic means. Electronic transfer includes transfers by fax, e-mail or telephone;

(b)

the transfer by any means of technology intended for use in connection with WMD or a related missile programme. This supplements existing end-use controls on the physical export of goods, software and technology and the electronic transfer of technology contained in the Regulation. The new control will apply to anyone in the United Kingdom or a United Kingdom person anywhere in the world who communicates technology which the provider knows or has been informed by Government, is or might be intended for use outside the European Union in connection with WMD or missiles capable of delivering WMD; and

(c)

the provision of technical assistance in relation to WMD. This control will apply to anyone in the United Kingdom or to any United Kingdom person abroad who provides or facilitates the provision of technical assistance outside the United Kingdom where he knows or is informed by the Government, that it is or may be intended for use in connection with WMD or missiles capable of delivering WMD. This control, together with the WMD transfer controls, implements the European Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses (2000/401/CFSP).

The Order is divided into six parts:

Part I deals with controls on the export of military goods, dual-use goods and goods in transit with a WMD end-use;

Part II deals with controls on the electronic transfer of military and dual-use technology and the transfer of technology with a WMD end-use by both electronic and non- electronic means;

Part III deals with controls on the provision of WMD technical assistance;

Part IV sets out exceptions to the controls in Parts I, II and III;

Part V provides for the granting of licences, record keeping and appeals. The appeals procedure in article 15 is new and sets out the procedure for appealing against any decision of the Secretary of State to refuse, suspend or revoke any licence issued under this order or the Regulation. Appeals must be made within 28 days of the date of the written notification recording the Secretary of State’s decision; and

Part VI sets out the penalties and means of enforcement for breach of the controls in the Regulation and Parts I, II and III of this Order. In article 16 the maximum penalty for the intentional breach of controls on exports, transfer of technology and technical assistance is set at 10 years, the maximum penalty permitted under section 7(1) of the Export Control Act 2002.

Article 24 of this Order revokes the DUEC but provision is made for the continuation of all licences issued before 1st May 2004 for the duration of their original validity and for the DUEC to continue to have effect in respect of any export which occurs before 1 May 2004.

Guidance issued pursuant to Section 9 of the Export Control Act 2002 on the operation of these controls, and a full regulatory impact assessment of the effect that this instrument will have on the costs of business, are available from http://www.dti.gov.uk/export.control/ or the ECO help-line–Telephone [phone], Fax [phone] or E-mail: [e-mail].