Export Control Bill
Lord Redesdale (Liberal Democrat)
moved Amendment No. 1:
Page 1, line 10, at end insert—
"( ) Where export controls apply to goods which are within one or more of the categories mentioned in paragraph 1(1) of the Schedule, the guidance issued under section 7 shall have regard to their issues relating to sustainable development and to any possible consequences of the goods being controlled that are of a kind mentioned in the Table in paragraph 3 of the Schedule."
Lord Redesdale (Liberal Democrat)
My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 24. Both amendments are tabled in my name and that of my noble friend Lord Razzall. Both issues deal with sustainable development.
In Committee Her Majesty's Government introduced significant redrafting of the section on guidance and the schedule of purposes, apparently in response to concerns expressed about the way sustainable development was treated in the Bill. Unfortunately, the Government refused to make the simple changes that have long been proposed to include sustainable development as one of the relevant consequences in the schedule, which would place the issue on a similar footing as concerns about human rights, regional stability and terrorism.
Sustainable development was included as a relevant consequence when the Bill was first published in draft form. However, in every subsequent incarnation it has been omitted. The purpose of Amendment No. 1 is to provide belt and braces. When a similar amendment was introduced at the last stage of the Bill, the Minister raised significant concerns about its suitability. We have attempted to redraft the amendment to allay his anxieties.
The Minister raised the issue of "widgets". Amendment No. 1 was drafted to exclude the consequence of the Secretary of State having to review every single item that could conceivably need an export control order. However, a real concern was raised as to the phraseology used in the amendment drafted by the Government at the last stage. In Clause 7(4) the words "if any" were added.
The Minister expressed his opinion that the words "if any" give the Secretary of State the ability to make judgments over what was and what was not important while being directed over matters which would be considered relevant under the Bill. However, there is anxiety that the ability of the Secretary of State to make such decisions is far too broad and would mean that certain aspects that many feel should fall within the ambit of the Bill could fall outside it. The purpose of the amendment therefore is to add to the schedule categories which are already covered by the Bill thereby avoiding the widget problem but at the same time ensuring that the Secretary of State takes into consideration sustainable development.
Amendment No. 1 is particularly concerned with the problem that arises within different departments in government; that is, that one department has one view and another department can take a different view. That is clearly illustrated by the situation in Tanzania. Even since the last stage of this Bill matters have developed. The air transport control system seems to have fallen foul of the World Bank, which does not believe it to be a good investment. It is being scrutinised by the International Commission for Aviation. Also the DfID has frozen a £10 million development loan to one of the poorest countries in the world pending the outcome.
If I am wrong on any of the aspects of Tanzania—obviously it is more complicated than can be envisaged superficially—that does not change the underlying need for the amendments. There will always be a difficulty between the granting of an export licence which is driven by exporters and the real need of developing countries not to have exported to them armaments, weapons systems or their components which could jeopardise their sustainable development. I beg to move.
Lord Judd (Labour)
My Lords, I congratulate the noble Lord, Lord Redesdale, on moving this amendment. In doing so I remind the House that I am closely involved with the work of Saferworld and Oxfam, two organisations deeply concerned about the issues in this Bill.
I have absolutely no doubt that my noble friend shares our common objective. Does he not accept that, as so well argued by the noble Lord, Lord Redesdale, the insertion of the words "if any" creates a loophole? Does he not also agree that it would be unfortunate if, in the context of his own goodwill, we accepted wording which enabled some successor totally to disregard the issues which concern us today and which are spelt out in the schedule.
That is the point. The problem is not the people in place at the moment; it is those who may be in place in the future. If we are of serious intent we should have watertight wording, not ambivalent wording. That is why Amendment No. 1 is so crucial in what it seeks to achieve for the long-term future.
Baroness Miller of Hendon (Conservative)
My Lords, at Second Reading we supported the idea of sustainable development. We were pleased to see the amendment tabled by the noble Lords, Lord Redesdale and Lord Razzall. We on these Benches support the amendments.
The Bishop of Manchester (Bishop)
My Lords, I too welcome Amendment No. 1. I do so because I want to remind the House of the moral presumption against the export of goods that are harmful and the moral presumption in favour of poverty relief, accessibility to health, education and welfare, and human flourishing.
If we are serious as a nation as well as a government about halving global poverty by the year 2015, there will need to be greater effort not only on the humanitarian front of the voluntary organisations, but also diplomatically, economically and politically to reduce the number of countries embroiled in armed conflict, and to improve the conditions in which regeneration can occur and be sustained. So I am glad to see that the criteria for sustainable development are written deeply into the Bill. We need to ensure that they stay.
The issue of sustainable development is plainly recognised by Her Majesty's Government. Yesterday I sat through a debate calling attention to the Green Paper, Planning: delivering a fundamental change. Several speakers referred to the importance of taking sustainable development into account when considering planning in the United Kingdom. Indeed, the noble and learned Lord, Lord Falconer, in his winding speech—I am never sure why it is called "winding" and not "winding-up"—spoke of "planned sustainable development" and "delivering sustainable development" within the UK.
However, the weight given to sustainable development in the Bill—it is the weight that is important—is weak. I recognise that the Bill involves controlling certain goods and taking sustainable development into account, and that it is not about sustainable development per se. I heard that in Committee. But the responsibility currently placed on the Secretary of State is inadequate.
In Committee on 4th March, at col. 100 of Hansard, I was pleased to hear the Minister say that,
"in controlling the items specified in the schedule table, we [the Government] should apply the sustainability criterion. That is why we put that in the relevant clause, where it is made clear that it is absolutely mandatory that it should be considered . . . We have made it clear that it is a mandatory requirement".
However, the Bill currently reads,
"consideration, if any, to be given".
I am not a lawyer. I am a "bear with little brain" when it comes to the legal mind. But to the lay mind there seems to be a considerable gap and weight of intention between it being "absolutely mandatory" that sustainable criterion should be considered and,
"consideration, if any, to be given . . . to".
The amendments give us the opportunity to ensure that the Secretary of State specifies that regard shall be had to what I hope noble Lords will agree is a significant matter. If we are serious about halving world poverty, we need to strengthen our legislation regarding what should and should not be exported and imported, taking into account the purposes and outcomes of such exports and the consequences of granting licences for them.
Lord Joffe (Crossbench)
My Lords, I too support Amendment No. 24. The words "if any" add very little. They create flexibility which is not really required. The flexibility could easily be gained in the phrasing of the guidance given by the Minister. As the noble Lord, Lord Judd, has said, they open up a loophole for future Secretaries of State to take advantage of a wording that really should not be there.
Lord Rea (Labour)
My Lords, I reiterate the view of my noble friend Lord Judd that all those who support these amendments, particularly those who speak from these Benches, are aiming in the same direction. The noble Lord, Lord Redesdale, and others have talked about those controversial words "if any". The noble Lord also brought widgets into the argument. The amendments are very useful in that they restrict the application of matters of sustainable development to a list of items—to none of which could the word "widgets" be applied. The table to the Schedule, entitled "Relevant Consequences", lists the serious matters that have to be taken into account: national security; peace, security or stability in any region of the world; the carrying out of acts that facilitate the development or use of weapons of mass destruction; internal repression in any country; and breaches of human rights. The amendment should solve my noble friend's question. I very much hope that it will be agreed to.
Lord Sainsbury of Turville (Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry; Labour)
My Lords, I shall speak to Amendments Nos. 1 and 24. They have not been degrouped. It is easiest to take the two amendments together. Both amendments relate to the provisions in the Bill which oblige the Government to address issues relating to sustainable development and those in the Schedule's table entitled "Relevant Consequences" when issuing guidance under Clause 7.
Amendment No. 24 is very similar to an amendment tabled in Committee. It would replace the existing requirement in Clause 7(4) that guidance issued under the Bill must include guidance about the "consideration (if any)" to be given to sustainable development and the issues in the Schedule table, with a requirement that the guidance must state that "regard shall be had" to such issues.
Amendment No. 1, if I have understood it correctly, has a slightly more focused intention, which is to provide that guidance issued under Clause 7 in relation to export controls on military goods shall have regard to sustainable development and to the issues covered in the table to the Schedule. I believe that Amendment No. 1 has been tabled in the spirit of compromise, as a possible alternative to Amendment No. 24, on the basis that it seeks to meet some of the concerns that the Government expressed in Committee about the consequences that would follow from having a blanket requirement to have regard to sustainable development, and all the issues covered in the Schedule table, in the assessment of every individual export licence application.
If that is the case, I very much welcome the noble Lords' attempt to deal with the Government's previously stated concerns on this issue. However, as I shall explain in more detail in due course, Amendment No. 1 does not meet all the concerns that I identified in Committee. Perhaps I may concentrate on Amendment No. 24, as it raises the key question of whether the Bill as it now stands adequately provides for a lasting commitment on all future governments to address sustainable development and the issues listed in the Schedule table in the export licensing process.
Let me say at once that I have sympathy with the noble Lord's aim in tabling the amendment and with the views of the noble Lord, Lord Judd, on the matter. I have no more confidence than he or the noble Lord, Lord Judd, have in the goodwill of my successors in other governments on this issue. We certainly do not want to leave open the possibility that a future government could undo our achievements in securing a clear commitment to sustainable development and all the other issues covered in the EU code in the UK arms export control regime. However, we are confident that we have not left open such a possibility. Amendment No. 24 is not necessary to prevent such a possibility arising in the future.
Before explaining the reasons why the revised wording suggested by the noble Lord is not necessary, let me first explain why we have worded Clause 7(4) as we have and why it needs to be retained in the Bill.
The Government do not deny that there is a difference in effect between the revised wording proposed by the noble Lord for Clause 7(4) and that which the Government moved in Committee. The requirement that guidance published under Clause 7 must include guidance,
"about the consideration (if any) to be given"
to particular matters, provides a degree of flexibility which a requirement that such guidance must state that "regard shall be had" to those matters would not. I should like to explain why the Government consider that this flexibility is necessary.
As I said in Committee, the Government need to be able to take common-sense decisions and to reach a judgment when taking export licensing decisions that particular considerations are simply not relevant in certain cases and situations. However, the amendment would require this and future governments to consider sustainable development and every issue covered by the Schedule table whenever they exercised licensing powers under the Bill.
A worrying consequence of that would be to compromise significantly the Government's capacity to comply with future international obligations and commitments relating to export control. I stress that in pursuing these it is not necessarily for the UK to decide to which factors regard must be had in the taking of export licensing decisions. That depends on the exact terms of the obligation or commitment. However, Amendment No. 24 would oblige the Government to have regard to sustainable development and all the Schedule issues in all cases.
The amendment would also fetter more generally the Government's ability to take common-sense decisions that, in certain cases, consideration of sustainable development and issues in the Schedule table are not relevant. For example, a proposed export of a single military vehicle to a developed country such as the United States would clearly not raise sustainable development issues. Nor would sustainable development, and several of the issues in the Schedule table, be relevant in the consideration of most applications for a licence to export objects of cultural interest.
However, the Government would not be able to say, "We will not take account of sustainable issues in these cases" and give guidance on it, because the legislation would require them to say that they would take account of sustainable development and those issues. That is why the reference to "consideration (if any)" in Clause 7(4) is needed. It allows the Government to retain the capacity—
Lord Judd (Labour)
My Lords, I am very grateful to my noble friend for giving way. What he has just said is exactly what puzzles us. If it is not really necessary to take the issue of sustainable development seriously, there is no need to have the words "if any" in the Bill. Sane, sensible officials, sitting down to consider how to process this matter would very quickly see that in this issue it was not relevant. Why on earth do we have to put in the words "if any", thus giving some future Minister the opportunity to say, "In this case, not at all"?
Lord Sainsbury of Turville (Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry; Labour)
My Lords, perhaps I may respond to a point made by the right reverend Prelate. We are considering legislation; we are not considering what a sensible lay person might think about the matter. When the legislation of a country says, "You must consider sustainable development", it must be considered. That is what laws are about. A government cannot say, "I am sorry, we are not going to consider it"; they must consider it. They cannot give guidance to say that they will not. Legislation sets certain requirements on governments and civil servants. It is therefore extremely important that the wording is flexible in that manner.
Earl Russell (Liberal Democrat)
My Lords, is it not possible for a Minister to consider the issue of sustainable development and conclude that it does not apply to a case? Would it not be reassuring to know that the Minister had done so before deciding that it did not apply?
Lord Sainsbury of Turville (Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry; Labour)
My Lords, I hope that that was the point that I made. In those circumstances, we could not then say to people in a sensible manner, "In the following sort of cases, under the regulations, we shall not consider sustainable development". We cannot give practical guidance to people to say, "No, in these cases"—such as sending a particular vehicle to America—"we shall not spend our time and you need not be concerned about our taking sustainability into account". That is what we are trying to deal with here, and it is not all right to say that civil servants and Ministers can just ignore or not take seriously what the legislation states.
Lord Judd (Labour)
My Lords, I am most grateful to my noble friend for giving way again, and I apologise for interrupting again. We are not saying that they should not consider it; we are saying that early in the course of considering it, they would realise that it was not relevant and that there was no case.
My Lords, I have already answered that point. It is a question not only of considering it and saying whether it is relevant but of whether we can give sensible guidance.
It is true that Amendment No. 1, if accepted as an alternative to Amendment No. 24, would provide less of a blanket requirement on government to have regard to all issues in every case. However, it would retain the blanket requirement in respect of export controls on military goods. That would introduce a damaging rigidity to the arms export licensing process, obliging the Government to consider sustainable development and every issue in the schedule's table in considering every arms export application, even where one or more of those issues was clearly not relevant—such as in the example that I gave of a military vehicle to be exported to a developed country. I also point out that the need not to compromise our ability to implement international commitments under the Bill applies equally to controls on military goods as to other categories of export control.
However, we are confident that the words "if any" in Clause 7(4) would not allow a future government freedom to decide to ignore sustainable development, or any of the issues in the schedule's table, by saying simply, "We have considered sustainable development and concluded that it has no place in consideration of any export licences". The Bill makes clear that it will be a requirement on any government to issue guidance about the general principles to be followed when exercising licensing powers and that that guidance must address sustainable development and the other important issues covered in the schedule's table.
Moreover, Clause 7(5) requires that the Government "shall have regard" to that guidance when taking decisions on export licences. I emphasise that Clause 7(5) determines the status of the guidance, not Clause 7(4), which purely sets out what must be in the guidance.
I also reiterate the important point that were a future government to decide not to take sustainable development considerations into account in arms exports, not only would Clause 7 require them to publish that decision and so take it in the full glare of parliamentary scrutiny, but the Bill would also require them to justify such a decision. In that context, it is important to remember that the issue of sustainable development and the issues listed in the schedule's table are all reflected in the EU Code of Conduct for Arms Exports, which represents a binding political commitment to our EU partners.
While the UK is a member of the European Union and committed to the EU Code of Conduct for Arms Exports, it is difficult to see how any future government could ignore any of the criteria, including that of sustainable development, without facing a real likelihood of successful challenge in the courts. Moreover, the explicit reference to the consolidated criteria included in Clause 7(8) and the accompanying statement that the criteria,
"shall (until withdrawn or varied under this section) be treated as guidance",
under the Bill reduce still further a future government's room to deviate from any part of the criteria.
None the less, I recognise that concern continues to be felt about the possible intention or likely effect of the words "if any" in Clause 7(4). At my meeting last Friday with the UK Working Group on Arms, the group referred to advice obtained by it on the issue from Matrix Chambers and specifically to the suggestion in Matrix Chambers' advice that it might be helpful if a Minister were to spell out clearly in debate that the intention behind the inclusion of the words "if any" is not to open up a loophole in the Bill. The group asked whether I would be prepared to give such an undertaking before the House at Report. I told it that I should be pleased to do so, and I am happy to put on record today that the intention behind the words "if any" in Clause 7(4) is purely to enable the Government to make commonsense decisions about the circumstances in which sustainable development, or any of the schedule issues, would not be relevant to a licensing decision.
Not only are the words "if any" not intended to create a loophole allowing the Government to ignore any particular issue, we are confident that they do not offer any government the opportunity to ignore either sustainable development or any of the schedule issues, where that would be contrary to our obligations under the EU code of conduct.
I turn to the question of Tanzania as it relates to sustainability. I make clear that the Government would not have granted a licence in that case if to do so had been in contravention of the consolidated criteria. Sustainability was an issue that was taken into account and a judgment was reached on that basis.
In conclusion, I repeat that the Government acknowledge that the wording in Clause 7(4) provides a degree of flexibility which the wording proposed in the amendments does not. But I hope that noble Lords will accept my explanation of why that flexibility is needed and that they will also accept my categoric assurance that it does not offer a means by which a future government could choose to disregard sustainable development or the schedule issues in the export licensing process. On that basis, I hope that the noble Lord will withdraw the amendment.
Lord Redesdale (Liberal Democrat)
My Lords, I thank the Minister for that comprehensive reply and for his helpful assertion about the use of the words "if any". However, he finished by discussing the need for flexibility. That is the key issue about which many of us are concerned: the flexibility to decide what is and what is not important. To be granted, an export licence must fulfil many criteria. It is not beyond the wit of man to provide a box to be filled in. Although the clear example that the Minister gave of a military vehicle for America is cut and dried, the same cannot be said of many other cases.
I was also interested in the Minister's view that the intricacies of legislation are way beyond the layman.
My Lords, I did not say that. I said simply that approaching these matters by saying what I as a layman would think might be right is no kind of defence in law or a good argument in most legal cases, in which people tend to think that what the law says is what is important. Ministers cannot take a cavalier view about legislation and simply say that we ignore it because it is not sensible.
Lord Redesdale (Liberal Democrat)
My Lords, I apologise if I gave the wrong impression, but what the Minister said emphasises my problem with the expression "if any". Although the Minister has given a definition that the Government will observe of "if any", if it were to be argued in court it would be a difficult case and not cut and dried.
The Minister raised my example of Tanzania. The World Bank was not in favour of that loan and it will be interesting to hear what the International Civil Aviation Organisation has to say about what is actually a military air traffic control system.
This is a very good Bill. We support it, and I mean no criticism of it in introducing belt and braces. I make no insinuation that the Government have anything but the highest view of this. However, I believe that there is a loophole here and that it could be used. The matter could end up in court. Therefore, I beg leave to test the opinion of the House on the issue.
moved Amendment No. 2:
Page 1, line 11, leave out "An order under this section may" and insert "The Secretary of State may by order"
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5, 7, 8, 9, 11 and 12. These grouped amendments are technical, drafting amendments that are needed in order to make the appropriate distinctions between the powers in the Bill in respect of areas within national competence, and those in respect of the implementation of directly applicable Community controls in areas of Community competence.
Amendments Nos. 2, 5, 8 and 11 introduce a series of similar amendments to Clauses l, 2, 3 and 4. These make it clear that an order made under the Bill introducing export, transfer, trade or technical assistance controls is different from an order under Clause 1(5), 2(5), 3(6) or 4(5) giving effect to directly applicable controls imposed by Community regulation. In the case of the latter, not all of the subsidiary provisions in the clauses should apply. Amendments Nos. 7 and 9 to Clause 3 similarly make clear that subsections (5) and (7) do not apply to the clause as a whole as they do not apply in respect of orders under Clause 3(6) but apply only in respect of controls introduced under the Bill within areas of national competence.
Amendment No. 12 is a consequential of Amendment No. 11. Amendment No. 11, as I have explained, makes clear that an order introducing trade controls will not be made under the clause as a whole, but will either be made under Clause 4(1) that allows for controls to be introduced under national law, or under Clause 4(5), which provides for the introduction of provisions in connection with controls introduced by a directly applicable Community provision. This means that it is necessary for the whole definition of what is meant by,
"activities which facilitate the acquisition, disposal or movement of the goods",
As noble Lords are probably aware, the amendments before the House are very technical in nature. However, they are needed to ensure an appropriate distinction is made between our national powers and those that derive from Community obligations. I therefore invite noble Lords to support them. I beg to move.
Baroness Miller of Hendon (Conservative)
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 4, 6 and 10. Amendments Nos. 3, 4 and 6 are simply paving amendments, although one of them is of slightly more substance and I shall deal with it later. The purpose of these paving amendments is to make way for Amendment No. 10, which I have no hesitation in describing as major and of the utmost importance both for academic freedom and for scientific research; and, indeed, for constitutional freedom.
The content of the main amendment has been altered from what was discussed in Committee. We have sought to take into account the words and advice of the Minister. I have also taken account of numerous further briefings. The amendment incorporates the suggestions made by the noble Baroness, Lady Sharp of Guildford, in her Committee stage amendments and I am very pleased to see the noble Baroness's name attached to the current amendments.
I am not just speaking for the two of us; I am speaking on behalf of Universities UK, formerly known as the Council of Vice-Chancellors and Principals, and for the Association of University Teachers, which represents 45,000 academic and academic-related staff; and, indeed, for the Foundation for Information Policy Research. Therefore, I can say that these amendments speak for a wide branch of academia, who feel most strongly about the issue. It is a subject of the gravest concern and of the highest anxiety to the whole of scientific academia.
Despite the credentials of this important amendment, it was arbitrarily—I hope that the Minister will forgive me for saying so—dismissed by the Government. There was not even an offer to find a way to meet the justifiable fears of those who, through this amendment, seek the protection of Parliament.
"have regard to the need to avoid any unreasonable restriction"!
We all know about unreasonable restraint; indeed, we all know about "unreasonable". But we just have to get on with it. The fears I have mentioned were not allayed by the anodyne words of the Minister in his response in Committee. As a result, I received even more briefing from academia. Therefore, I have no hesitation in asking your Lordships to consider the current amendment.
As noble Lords are aware, the Bill deals with controls on the export of goods and equipment—from weapons to items of cultural importance. It also deals with the export of technology. Moreover, under Clauses 2 and 3, it ventures into the fields of intangibles, such as information, and, as it stands, into the field of thoughts and ideas.
The amendments and my proposed new clause revolve around the principles of freedom of expression, freedom of teaching, and freedom of research. Those freedoms are fundamental human rights to which the political objectives of the state should normally be subservient. Unless my amendments, or others incorporating the same principles, are included in the legislation, then, despite the certificate given by the Secretary of State in the preamble to the Bill, I have no doubt at all that it would not stand up to the light of a challenge under the convention on human rights.
The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do. By virtue of Clause 2(2)(c), they are even attempting to control the exchange of ideas within the United Kingdom. It is for that reason that a solid body of academia is totally opposed to some of the Government's proposed provisions, which are inappropriate in a country where universities have been centres of learning, research and discovery for over 900 years. As drawn, the Bill will at the least inhibit the latter; at the worst, it will reduce the ability of our universities to teach future generations. Moreover, it will drive undergraduates to study elsewhere in the world. By preventing the export of ideas, I suggest that it will also result in graduates and researchers exporting themselves elsewhere to carry out their work.
Perhaps I may now explain the main provisions of my amendments. Amendment No. 4 proposes the deletion of Clause 2(2)(c) and (d). Together, those paragraphs give the Government power to control what the Bill calls "the transfer of technology", which includes teaching technological subjects to anyone inside the United Kingdom where there is reason to believe that the technology may be used outside the United Kingdom. But the teachings of our universities and colleges are expected to be used outside the United Kingdom. Never mind the thousands of British scientists and technicians who have travelled the world for hundreds of years taking their knowledge and skills with them. What on earth do the Government think that the thousands of foreign students who come to this country every year will do with the technology that they acquire here? They will naturally take it back home and use it either there, or elsewhere in the world.
It is undesirable, I accept, that the citizens of some countries should be taught certain subjects—atomic science, or aspects of biology or chemistry—that could be translated into the manufacture of chemical or biological weapons, or that they should receive instruction enabling them to fly aircraft into skyscrapers. Of current vital and commercial importance is the science of cryptology and authentication codes. They were first devised in 1964 to prevent the misuse of atomic weapons by potential Dr Strangeloves. But today we all use them on the remote controls in our cars.
That is a minor but telling example of how small businesses exporting common-place goods and services in the public domain may unwittingly fall foul of wide-sweeping regulations and their owners may be exposed to possible criminal sanctions. The encryption of electronic documents will play a vital part in international commerce in the future and perhaps, together with other wide-ranging categories of scientific knowledge, the Government are right to insist that care is taken about with and to whom sensitive information is shared or taught.
If as a matter of policy the Government want to prohibit students from this or that country from coming here to study this or that subject, the onus of exercising that control must rest with the Government and not with the teaching institutions which have neither the skills nor the resources to screen their potential students. They have no means of controlling what students will do with their knowledge once they have completed their courses. Indeed, the whole concept that once you have imparted knowledge or information to someone, you can control what he does with it is such manifest nonsense that the whole of the two subsections to which I refer are completely unenforceable absurdities. Do we seriously expect our universities to ask their chemistry students whether they intend to make poison gas?
The provision is complete control-freakery, raised to the umpteenth degree and totally impractical to enforce to boot. If the Government want to control who is taught by whom, as they control who comes into the country, except perhaps via the Sangatte Camp and Eurotunnel, the instrument that they must use is visas—the issuance of visas.
"There are no powers in the Bill to license foreign students. The Bill is not designed to enable the introduction of a compulsory scheme to vet students",
Apart from noting the qualification about a compulsory scheme, and whatever the Minister may believe the Bill is or is not designed to do, the clear wording of the Bill unquestionably means that there is to be some form of control on the entry of some students from some countries if they want to study particular subjects.
Before the Minister in his response tries to suggest that I have got it all wrong, I invite him to look at the minutes of a meeting which took place on 21st September last between two of his officials, a representative of the Foreign and Commonwealth Office and another from the Department for Education and Skills on the one side and four representatives of Universities UK on the other. I shall not trouble the Minister or your Lordships with the five pages of the minutes, but I shall gladly make them available to anyone who wants to see them.
In essence, the points being made by the Government were:
"The clause has now been modified . . . and it now states that a licence will be necessary only where it is known or the Government has informed the institution that there is an intention to use subjects in relation to a weapon-of-mass-destruction programme".
The official went on to say that the onus has shifted from the institution to the Government. Contrary to what the official says, subsections (2)(c) and (2)(d) of Clause 2 have not altered by one single punctuation mark between the time the Bill was introduced in the other place on 26th June 2001 and today. And nowhere does it say that the onus is on the Government to notify the universities about anything. In fact, the Government in Committee in your Lordships' House totally opposed any modification to these provisions.
The representatives of the Department of Trade and Industry also said that the need for a licence would apply only to particular end users. It is abundantly clear that contrary to what the Minister told Dr Anderson in his letter of 28th February, the Bill will introduce a system of compulsory vetting of some students and I hope that in the light of the contents of the meeting to which I have referred, the Minister will not try to persuade your Lordships to the contrary.
It is also clear that there is nothing in the Bill as it stands which shifts the onus of vetting and licensing away from the universities—
My Lords, will the noble Baroness say which part of the Bill suggests that there is any system in it for the licensing of foreign students as opposed to licences which will be required by the person who is passing over the information? The whole nature of the Bill is about actions which pass information over. There are licences in that respect, but they are quite distinct from a system of licensing of students.
Baroness Miller of Hendon (Conservative)
My Lords, I shall continue with my speech and come back to that point in a moment. That is why my Amendment No. 4 unequivocally calls for the rejection of subsections (2)(c) and (2)(d).
I shall return to another aspect of those subsections when I explain subsection (4) of the new clause which I am proposing as Amendment No. 10. In view of their importance I should now like to explain them paragraph by paragraph but as shortly as possible.
Subsection (1) begins with the preamble restricting the right to control academic freedom except in three cases. The first is if such restrictions are imposed by any other statute. I have in mind, for example, the Official Secrets Act. The second is if such control is required by virtue of any international treaty obligation of the United Kingdom. I have deliberately stressed that it must be a treaty obligation because treaties receive a cursory examination by Parliament. I do not want to see the Act circumvented by a vague undertaking given by the third secretary in some remote embassy, possibly without authority. Thirdly, I have inevitably had to accept that the sovereignty of our ancient Parliament is now subject to the dominion of Brussels.
With those caveats, subsection (1) restricts the right of the Government to make control orders on the transmission of thoughts and information in three cases. However, as I have said, there will be found to be a fourth when we come to the stand-alone provisions of subsection (4). The three instances where the Secretary of State cannot make control orders are, first, where the information is already in the public domain—and it is not necessary for me to explain that. If technological information is already in the public domain, it is a pointless exercise to try to ban its further dissemination. Phrases such as "putting the genie back in the bottle" or "putting the toothpaste back in the tube" spring to mind.
Secondly, the Secretary of State should not be able to prevent the placing of information in the public domain, including for patent and copyright purposes. That is censorship of the highest order and once again there is no practical means of enforcing such a ban. In these days when one can surf the Internet and find out how to make atomic bombs—at least in theory because, of course, the resources needed are well beyond the means of the average do-it-yourself practitioner—any ban on anonymously opening up a website is impossible to police. In fact, you do not have to use the Internet. Apparently, as we read in the newspaper last week, you can find it at the Public Record Office, courtesy of the Ministry of Defence, one of the agencies which is supposed to monitor licence applications.
Finally, I propose in the interests of academic freedom that the Government should not have the power to censor what may be taught. That is the very power they are seeking—or, if I do them an injustice, the power they will unwittingly have taken by the Act. Now that they have been told, I expect them to disclaim it and put it beyond their reach.
During the meeting to which I referred a moment or two ago, the senior representative of the DTI said, according to the minutes, that:
"There was no question that undergraduate studies would be affected by the proposed legislation, and that lecturing would also be unaffected as lectures would be treated as putting the matter in the public domain".
That interpretation, incidentally, reinforces my argument about paragraph (b) because at the meeting the DTI accepted that placing material in the public domain could not be banned. Unfortunately, nowhere does the Bill yet contain that inhibition, but it will if my amendment is accepted.
Your Lordships will have noticed that I do not seek to empower the academics to run amok with what they teach. I propose to prohibit the dissemination of information which they know or—and here the onus is on the teacher—which they ought to have known is intended for use in connection with the manufacture and use of nuclear weapons or biological or chemical weapons and similar nasties.
At this point I want to tell the House that this morning I was informed that the Minister was lobbying noble Lords who had been supportive of my amendment in Committee in order to suggest that it was flawed because the list of wicked purposes in my new clause was simply not long enough. However, it is taken word for word from Article 4 of the Dual Use Regulation of the European Community and we chose those words specifically to meet the criticism based on the article which the Minister made in Committee. I am surprised that having telephoned other people about it he did not get in touch with me. Had he done so, we might have been able to talk about the matter.
I have deliberately not used the phrase "weapons of mass destruction"—
My Lords, I must ask the noble Baroness whether the 10-minute conversation we had in the corridor this morning was not one about exactly this issue. I explained exactly why I had grave reservations. I shall explain those later to the House. I explained that they were not about that particular aspect but about the fundamental issue of academics being taken out of the Bill altogether.
Baroness Miller of Hendon (Conservative)
My Lords, if the noble Lord had waited just a few moments longer, I would have told the House that I did meet him in the corridor some two hours ago, at which point we spoke for 10 minutes on another matter. However, he did not give me a chance to say it.
I have deliberately not used the phrase "weapons of mass destruction", which is what I said to the noble Lord earlier. I had understood that the noble Lord was concerned about that, but he said that he was not. My researches tell me that some governments, including ours and that of the United States, are conducting a kind of Dutch auction to define how many people can be killed before a weapon can be classified as a weapon of mass destruction. I believe that, at this stage, the figure might be as low as 25. That would mean that a bus running amok in Oxford Street possibly could be so defined. There is no purpose in that.
A few moments ago the noble Lord said that I did not mention our conversation. I have mentioned it and I understand that the noble Lord is concerned that my list is not wide enough. That is why I have responded to that for the benefit of those noble Lords whom the noble Lord has already lobbied.
The noble Lord's last-minute concern was that subsection (1)(c) of the proposed new clause would allow an ill-disposed academic to put dangerous information on to the Internet and then pretend that that had been done, "in the ordinary course of academic teaching or research". I should point out that nothing could prevent that being done from an anonymous website in a remote place outside the EU.
More than that, I am legally advised that my carefully drafted clause, which limits my exception to what is done in the ordinary course of academic teaching, along with the further provision that the person must or ought to know that what he is doing may be used for one of the bad purposes I have described, will prevent any such defence. Aside from that, such bad faith action would probably be caught under the Prevention of Terrorism Acts.
Perhaps I may return to the Bill. New subsection (1)(c) allows academics to teach, but restricts them when they know, or ought to know, that what they are teaching could be used for one of the bad purposes that I have comprehensively defined in the clause. Subsection (2) reaffirms the powers of the Comptroller-General under Section 22 of the Patents Act 1977 to prohibit the publication of information in a patent application which might be prejudicial to the defence of the realm or the safety of the public. Subsection (3) operates in a negative way compared with the rest of the new clause. It allows the Secretary of State to make a control order against transferring information or technology outside the EC where the transferor knows or ought to know that they could be used for the undesirable purposes I mentioned earlier.
Finally, I turn to new subsection (4). It underlines the whole concept of the freedom to teach students from abroad or who might go abroad with their knowledge. Perhaps I may refer to a regulation—I shall need to take a deep breath to recite this, although I have had to take several deep breaths in the course of my remarks—Council Regulation (EC) No. 1334/2000 of 22nd June 2000 setting up a Community regime for the control of exports of dual-use items and technology. The first preamble reads:
"Whereas dual use items (including software and technology) should be the subject of effective control when they are exported from the Community".
No one would argue with that. However, Chapter 2, Article 3 is of particular interest. It provides specifically that the regulation does not apply to the supply of services or the transmission of technology if that supply or transmission involves the cross-border movement of persons.
Noble Lords will recall that in the days of the Soviet Union, emigration visas were frequently denied on the grounds that the applicant was possessed of certain vital information. Quite rightly, the EC is going to make it clear that those pretexts will not inhibit the free movement of people. It was also suggested to me, perhaps facetiously, that without it a person facing deportation to somewhere outside the EC could prevent it by having the formula for sarin gas tattooed on to a part of his person; I shall not say where.
In this series of amendments I have met the somewhat specious arguments produced by the Government at the previous stage. In response to a question then put to me by the noble Lord, he will see that subsections (2)(c) and (d) enable students to be licensed, a point with which we did not agree. His arguments were designed to support the Government's apparent desire to subject the whole of academia to the rigid controls of Whitehall. I have placed the onus of ensuring that undesirable students are kept out fairly and squarely on the Government, which is where it belongs. It should not be for the universities to have to go through such a procedure. It is for the Government to grant, refuse or cancel visas.
I have tried to produce a rational, practical and, above all, credible regime which prevents the export of dangerous knowledge and technology while maintaining responsible academic freedom, something this country is famous for. I beg to move.
Baroness Sharp of Guildford (Liberal Democrat)
My Lords, my name is attached to all the amendments in this grouping and I should like to speak to them. We do not dispute the assurances with regard to academic freedom given to us in Committee by the Minister, but through this series of amendments we seek to put those assurances on to the face of the Bill.
These problems have arisen because advances in technology mean that, today, the concept of the "transfer of technology" is no longer a matter of the physical passing-over of equipment, plans or blueprints. Technology now comprises processes of both the physical and the biological sciences. The Bill is applied deliberately to "technology of any description". The transfer of technology is also defined very broadly to include oral communication, telephone calls, e-mails, letters and data transfer via computer.
Given the range of technologies today—a whole set of data can be transferred via computer from one country to another—and given the ease with which technologies can be transferred by electronic means, noble Lords will recognise that the potential range of intangible goods covered by Clauses 3 and 4 of the Bill—research ideas, software, course materials such as handouts, lecture notes and slides, as well as academic papers and exchanges between academics in the process of collaborative research—is huge. Again, potentially Clause 2 will give the Secretary of State powers of prior review over relevant scientific publications. In deciding whether to grant a licence, the DTI will have to make such a review.
The Government have given us considerable assurances that this is not their intention. They say that the Bill is to apply only to a very narrow range of academic research that could be caught by its provisions and that anything in the public domain, including lectures, lecture notes and handouts, would certainly not be caught. It is to apply only to certain narrow areas of sensitive information where the person concerned either knows or has been informed by the Secretary of State that the area is sensitive and thus one in which they should take care about telling others about what they are doing.
That is fine and we accept those assurances. However, we want to see the assurances put on to the face of the Bill. Regulations have been proposed and the assurances are to be incorporated into them. Those regulations are to be adopted by negative resolution. However, I say to noble Lords that that is not enough. The fact remains that the terminology of the Bill is extremely worrying. Even if we were to accept the assurances of the Government that their intentions are benign, our job in this House is to scrutinise legislation and ensure that future generations are protected from the potential activities of governments that are perhaps less benign. It is important that we—the legislature—do not let the executive get away with passing such wide-ranging powers. It is important that the assurances are not given in regulations, but that they are put on the face of the Bill. That is what this series of amendments seeks to achieve.
We have bent over backwards to take into account the points raised by the Minister in Committee with regard to international treaties. We recognise that there are some areas where information is sensitive. People who have been so informed cannot simply hand over information. We have tried to incorporate that into the amendments. However, we feel very strongly that they should be put on to the face of the Bill. It is for that reason that I urge noble Lords to support the amendments. They are important to basic academic freedom which, as the noble Baroness, Lady Miller, pointed out, is something that is fundamental to this country. We ought to make it clear to the executive that the legislature does not think that the Government are doing the right thing.
Lord Judd (Labour)
My Lords, we have heard two very passionate and powerful speeches in favour of the amendment and the principle of academic freedom. For much of my life I have been involved with centres of higher education and universities and I would take second place to no one in my commitment to the principle of academic freedom. After the passion and sincerity with which the case has been argued, I have therefore some hesitation in making one or two cautious observations about the amendment as drafted.
I should like those who support the amendment to consider whether it is perhaps drafted too broadly and may inadvertently tip the balance too far away from the measures necessary effectively to control the arms trade.
In her amendment the noble Baroness, Lady Miller, provides exceptions only for restrictions required by any international treaty obligation of the United Kingdom or a directive of the Council of the European Community. However, many of the international export control regimes to which the UK belongs—such as the Wassenaar arrangement and the missile technology control regime—are voluntary arrangements not governed by treaties, and so the proposed exceptions would not apply to them. Given that most of our export and related controls derive from the international regimes, that would be extremely damaging. It would mean that the UK might even have to block any future negotiations in those regimes to control intangible transfers. Controlling intangible transfers was rightly hailed as an achievement of the Bill and these developments should not lightly be reversed.
Subsection (1)(c) of the proposed new clause would effectively exempt the academic community from transfer or technical assistance controls entirely except as they relate to weapons of mass destruction. Again I ask those who support the amendment, whom I respect—there is much in the amendment that must be taken seriously—whether this can really be right.
It is not only with controlling the spread of weapons of mass destruction that the Bill is concerned. In Clause 2 of the Bill the Government propose to introduce controls on the electronic transfer of military technology, the tangible export of which from the United Kingdom is already controlled. It is highly unlikely that this control will seriously impact on the academic community as any academic involvement in the development of controlled military technology is expected to be very limited.
However, it is important not to create a dangerous loophole in the Bill that would be ripe for exploitation. International research collaboration involving exchange of controlled military technology between industrial establishments would require a licence. I therefore do not understand why it is justifiable to allow the same research project to be carried out unlicensed if it is carried out by an academic establishment.
It is important to strike a balance between protecting the vital cause of academic freedom and introducing the controls necessary to regulate intangible transfers of technology that could lead to proliferation. I am worried that the amendment as drafted is too broad. I believe that while it is not perfect and observations could be made about it, in this instance the amendment brought forward by my noble friend the Minister comes closer to meeting in a balanced way the anxieties so well expressed in Committee.
Earl Russell (Liberal Democrat)
My Lords, I am grateful to the noble Lord, Lord Judd, for the spirit in which he has addressed this issue. I declare an interest as an academic.
By far the most interesting and difficult parliamentary conflicts are those which are between right and right. I understand that there is an interest of national security involved here. What is a weapon of war is now a matter which is in some doubt. There can be communication which can be used for purposes genuinely destructive to national security, but it is also true that the academic world is increasingly an international, global phenomenon. As John Winthrop once remarked when about to go to the United States, the Church is universal without respect of countries. The same is true of the universities.
The potential for interference with serious research is very real. How to draft a clause which meets a genuine danger without interfering with necessary freedoms is a problem to which not enough thought has been given by any of us. Let me take a parallel case from 1942. Stamp collecting is as innocent a hobby as one can think of, but my parents in Pennsylvania in 1942 had a cook whose hobby was collecting stamps from battleships posted in port. They thought that sounded a little too interesting. They told the FBI, and the man concerned disappeared one hour before the FBI's appearance. That told me two rather interesting things.
This is very much the kind of problem with which the Minister is forced to grapple, but unfortunately the Bill does not come within 100 miles of addressing it. The Bill is drafted in a style of draftmanship about which I have addressed the House before, the kind of draftmanship which only a weak Parliament could ever have allowed to grow up. Look, for example, at the wording of Clause 2(1):
"The Secretary of State may by order make provision for or in connection with the imposition of transfer controls in relation to technology of any description".
We need to find a way of wording a clause which requires some evidence suggesting guilt in a particular person before the clause comes into force. There is no requirement here to prove the military potential of the information concerned; there is no requirement to show any mens rea in the communicator; there is no requirement to show that the communicator has any suspect record or even any suspect contacts; there is no requirement to show that the person communicating is communicating with a recipient who is suspect. There is no restriction at all on the purposes for which this clause can be invoked. That cannot be right. It must be necessary to show that there is some reason to believe that national security is in danger before the whole hammer apparatus of this clause is brought to bear on restricting the communication.
The Minister offers secondary legislation, but when it comes to reassuring this House with secondary legislation I am afraid that the Government have shot themselves in both feet and several other portions of their anatomy as well. The White Paper on House of Lords reform proposes that we should lose our power to reject secondary legislation. I have put down a string of questions for Written Answer about negative instruments. In the previous Parliament, 0.5 per cent of them were the subject of division in another place and not one was rejected. So the only possibility for the rejection of a statutory instrument is in this House. If the White Paper were put into effect, that would go. There would then exist the genuine possibility of the Government legislating by decree. If we let a clause such as this go forward, we should have sold our birthright for a mess of regulations.
The existence of the White Paper must influence the way in which this House votes on clauses that create the power to make regulations. So long as that sword of Damocles hangs over us, we cannot consider clauses allowing the Government to make regulations with the degree of trust that we have given them in the past. To allow this clause to go forward, one would need a degree of trust so great that I do not think any parliament should allow it to any Minister in recorded history, even if he or she were the best that there had ever been.
Lord May of Oxford (Crossbench)
My Lords, Oliver Wendell Holmes once memorably said that the right to free speech does not include the right to cry "Fire" in a crowded theatre. I would add that the right to academic freedom does not include the right to light fires in crowded theatres, nor indeed to publicise new and more fearsome ways of doing so.
In short, I fully recognise—and my academic background is as rich and varied as that of anyone in this House—the need for various kinds of restrictions of the type in the Bill. However, lest we inflict greater damage on society than that which we seek to avoid, we need to be especially careful about how we limit free speech. We need to be especially careful about how we limit academic freedom. The exceptional circumstances need to be spelled out clearly and carefully, and not in sweepingly general terms. That is why—albeit with less passion than some earlier speakers—I support the spirit of this group of amendments.
That said, I share some of the reservations sketched by the noble Lord, Lord Judd, about the detail of the drafting. Subsection (4), for example, opens unintended loopholes. But the essential point is that amendments proposed by the noble Baroness, Lady Miller, and others go in the right direction in terms of affirming the need for academic exchanges and processes to be unhindered except in limited, defined and exceptional circumstances.
"avoid any unreasonable restriction on . . . the making of information generally available to the public; or . . . the communication of information that has already been made generally available to the public".
I have complete and utter trust in my noble friend Lord Sainsbury, our exemplary Science Minister. I have trust in my erstwhile colleagues—most of them anyhow—in the Department of Trade and Industry. I have particular trust in the current Secretary of State at the DTI, who has the unique virtue of being an Australian. But times change; people come, and people go. So I am unhappy with sweeping primary legislation and an invitation to trust decisions.
Nor is it a philosophical abstraction to distrust the possible consequences of such legislation. In the United States—and I have had personal experience of this during my 11 years as vice-president for research at Princeton University—similar laws, until they were recently changed, have been used, for instance, to impede pure mathematicians publishing work or presenting papers at conferences which were deemed to have possible reference to cryptography.
Admittedly, the Government's Amendment No. 22 means that, if a civil servant sought to impede academic publication or presentation in this way, I could seek judicial review and almost certainly win. I could even enjoy the adventure of invoking the Human Rights Act and going to The Hague en route to publishing the work several years later. What fun! That is scant consolation in terms of those apprehensions. In summary, I support the amendment, despite what I consider to be significant problems with the drafting, because I believe that its essential principles are clear.
Lord Campbell of Alloway (Conservative)
My Lords, I support the amendment. However, is not the proposal in the Bill to give a Minister of State powers of preview of scientific publications, with powers to regulate, worthy of anathema? I am not an academic, but I have always defended academic freedom. This step does not seem requisite and assuredly goes far too far. It moves towards the inhibition of free trade, not only in goods and services but also in research, opinions and information. We should surely be grateful to those who have tabled the amendment. I shall support it.
My Lords, the Government are fully aware of the strength of feeling aroused by the potential effect of the Bill on academic freedom. The noble Baroness is not right in saying that we have paid no attention to what was said in Committee when we are proposing a specific new clause to deal with the concerns expressed. On the basis of careful legal advice, the Secretary of State and I have made clear our view that the provision is compatible with the Human Rights Act. The idea that the Bill is not compatible with human rights legislation is wrong.
Perhaps I may point out that subsections (2)(c) and (d) of Clause 2 do not cover the licensing of students. The clause contains no power to license students, and no such power is contained in the Bill.
I say to the noble Earl, Lord Russell, that in a Bill of this kind it is no good pointing to one clause and saying that under its provisions the Secretary of State can do anything, without pointing also to the restrictions, of which he will be well aware, contained in Clause 5 and in the schedule. There, it is clearly delineated—for the first time in a Bill of this sort—that restrictions which have been open-ended in the past are in this case firmly tied to a list of categories of goods to be excluded and to areas covered by the schedule. One has to take the Bill as a whole. One cannot simply point to Clause 2 and say that under its terms the Secretary of State can do anything.
The final point that I draw from the debate is that conversations in the corridors may seem attractive, but they do not always convey information with the exactitude that one would wish. Therefore, I shall again set out clearly what we believe to be wrong with the noble Baroness's amendment.
We have listened to the concerns raised and, as a result, have proposed an amendment on the key issue of academic freedom. Our Amendment No. 22 provides, as we were asked to do, on the face of the Bill the protection of the principle of freedom to publish and to communicate information that has already been published.
So I make it absolutely clear that our Amendment No. 22 will make it almost impossible—except in very rare instances, when it can be justified by the Secretary of State—to restrict information that is already in the public domain or is being put in the public domain. I believe that that is what academic freedom is about. Academic freedom is not about allowing—as the proposed new clause would allow—academics secretly to pass information which is not in the public domain to academics in other countries.
Baroness Sharp of Guildford (Liberal Democrat)
My Lords, does the Minister recognise that information which is in the public domain is already there and cannot be removed? His proposed new clause is therefore irrelevant in this respect. The vital point is that the process of scientific development and methodology very often requires the exchange of information between academics in different countries before it is published. That is the basis of our concern about academic freedom.
My Lords, information is put into the public domain in almost all of the cases of academic freedom that we are discussing. People have frequently said, "The provision will stop us publishing information in a journal. It will stop us presenting a paper at a conference". Those are two examples of information being put in the public domain. However, one must distinguish those examples from situations in which information is passed to a person in another country and is restricted to those two people. I shall come to specific examples of the type of information sharing that Amendment No. 3 would allow. They will, I hope, demonstrate that the amendment would put an enormous hole in the Bill.
I should explain why we have taken this approach, as it will enable me to explain our serious difficulties with the approach proposed by the noble Baroness, Lady Miller. Our amendment addresses the concerns of the academic community about freedom to publish by requiring the Secretary of State to have regard to the need to avoid unreasonable restrictions on putting information in the public domain, or communicating material already in the public domain, when making secondary legislation under the Bill. Any order under the Bill which attempted to place an unreasonable restriction on publication or communication could therefore be opposed in the courts.
At the same time, the amendment retains the crucial degree of flexibility required to enable the Government to place restrictions on publication when necessary to control activities that might cause real harm, such as contributing directly to the development or production of weapons of mass destruction. Moreover, our amendment applies to all persons and all control orders under the Bill, not just to controls under Clauses 2 and 3 or to the academic community, as Amendment No. 10 does.
I believe that the amendment proposed by the noble Baroness, Lady Miller, shares to some extent the same aim as ours. None the less, it would have a number of very damaging consequences that would undermine the Government's ability to maintain a comprehensive and responsible export control regime. I do not believe that that can be the Noble Baroness's intention.
The amendments provide for protection of information being placed in the public domain or already in the public domain. However, it provides exceptions to this only for restrictions,
"required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community".
In fact, many of the international export control regimes to which we belong, such as the Wassenaar arrangement, are political commitments. However, as they are also effectively voluntary arrangements not governed by treaties the proposed exceptions would not apply to them. On the other hand, the amendment would permit restrictions on publication or placing information in the public domain if that were required by international treaties, regardless of whether the proposed restrictions were reasonable.
In contrast, as I hope to explain again in more detail later, the Government's amendment applies to all controls under the Bill including those required by the international regimes. Therefore, in that respect, our amendment—which the noble Baroness, Lady Miller, has described as "feeble"—provides greater protection than does hers. Consequently, in future negotiation of international treaties, UK negotiators will have to consider whether proposed restrictions on freedom of information are reasonable and can be justified.
A consequence of Amendment No. 10 is that its subsection (1)(c) would effectively exempt the academic community from transfer or technical assistance controls entirely, except in so far as they relate to weapons of mass destruction. That would create a significant and unacceptable loophole in the Bill. In fact, we do not intend to introduce any controls on technical assistance other than in relation to weapons of mass destruction. However, we do intend to introduce controls in Clause 2 on the electronic transfer of military technology whose tangible export from the UK is already controlled and which is not in the public domain or classed as basic scientific research.
It is unlikely that that control will impact much on the academic community, as any academic involvement in the development of controlled military technology is expected to be very limited. Nevertheless, given that international research collaboration involving exchange of controlled military technology between industrial establishments would require a licence, we believe that it would be unjustifiable to allow the same research project to be carried out unlicensed if carried out by an academic establishment.
Yet the amendment would permit any academic to transfer controlled military technology overseas freely. Consequently, any academic involved in military research who, perhaps for political reasons, wished to support an overseas regime, such as the Arab or Israeli side in the Middle East, would be able to transfer technology to one or other regime without hindrance by the legislation.
Such a blanket exemption from export controls for certain groups flies in the face of our efforts to implement an effective export control regime. The Quadripartite Committee in another place concurred with this view, stating in its report on the draft Bill that it saw no case for complete exemption of academic activity from export controls. I cannot believe that noble Lords really wish to allow particular groups to transfer technology which can be used to build conventional weapons or for internal repression or terrorism. I am sure that the industrial community would be troubled to discover that the academic community was trusted to send controlled military technology abroad at will while they were not.
I am amazed that the noble Baroness, Lady Miller, is supporting such an amendment. She must be aware that the above possibility exists as that was the nature of our conversation. I pointed out to her that that would be the effect of her amendments. Subsection (1)(c) of the proposed new clause effectively states that there will be no control on the transfer of information,
"orally or in writing or electronically in the ordinary course of academic teaching or research",
although it does make an exception for nuclear weapons. The amendments would clearly exempt academics from all the Bill's requirements in that regard.
Baroness Sharp of Guildford (Liberal Democrat)
My Lords, the provision does not apply only to nuclear weapons—it applies also to chemical and biological weapons. The provision also very clearly states that it will apply,
"unless the person placing or transferring the data knows or ought to have known that such information is or may be intended for use in connection with",
the development of such weapons. Our amendment precisely deals with the Minister's concern.
My Lords, of course it makes those exceptions; my point is that all other aspects of military technology would therefore not be covered by the Bill. Consequently, as I said, an academic could transfer such information to other countries without restriction. To have that written into this Export Control Bill, which seeks to stop that kind of military information going abroad, seems to me a complete nonsense. The Liberal Democrat Party has pushed strongly to tighten up the Bill to make it tougher for this technology to go abroad. It has pushed for even tighter restrictions on technology being sent abroad to be used in the way we are discussing. For it then to say that a group of people should not be subject to that control seems to me to make a complete nonsense of the Bill and to go in two completely different directions at the same time.
Subsection (4) of the proposed amendment would also prevent the Government from implementing their proposed controls on weapons of mass destruction in full, and in particular from meeting their commitments enshrined in the European Union Joint Action on technical assistance to weapons of mass destruction programmes agreed in September 2000. A primary purpose of that joint action was to address the question of supply to weapons of mass destruction programmes by persons moving outside the EU.
I turn now to Amendment No. 4. This would prevent the Government from introducing any controls on transfers of technology within the UK where the technology transferred was intended for use outside the UK and would also prevent introduction of controls on transfers of information into the UK where the technology concerned was intended for use outside the UK. Perhaps it may be useful if I begin by explaining why these powers were included in the Bill.
Essentially these provisions are about the export of technology. I think all accept that it is right that an export licence should be required for certain technology such as blueprints and manuals which describe how to build a weapon. Again I think it is generally accepted that if you need a licence to export that technology in physical form, you should also need a licence to export it electronically. But technology—by which essentially we mean knowledge—can also in effect be exported through communications in person. An expert going overseas and drawing up a manual there or directly instructing someone is effectively exporting technology. Again I think that has been accepted as an activity which may be subject to control. But the same expert might communicate exactly the same information to the identical person while in the United Kingdom, or he might telephone that person in the UK while overseas himself. Should that be permitted simply because the location of the individuals is different when exactly the same information is communicated between the same people?
Paragraphs 2(2)(c) and 2(2)(d) of the Bill are included in order to prevent controls being avoided in this way. It is important to note that these paragraphs of the Bill do not provide a general power to control transfers of technology within the UK or from overseas to the UK. They only allow controls to be imposed where there is reason to believe that the individual transfer in question will result in the technology concerned being used outside the UK. Moreover, like the other controls in the Bill, such controls could only be imposed if required by international obligations or European Community law in relation to military technology, or if they might lead to one of the consequences described in the schedule. Of course, if government Amendment No. 22 is accepted, it will be clear that these powers cannot be used to impose unreasonable restrictions on the publication of information or the communication of information that is already in the public domain.
We recognise that regulating these types of transfers is difficult; that is why we have made clear that the controls we introduce under these provisions in the Bill will be targeted on the areas of greatest concern: namely, weapons of mass destruction and related missile programmes. But we believe that these controls are extremely important in fighting the proliferation of weapons of mass destruction. In fact, these proposals were strongly supported by the Quadripartite Committee in another place, which described them in its report on the draft Bill as "profoundly significant".
It is worth stopping a moment to consider what the effect of removing paragraphs 2(2)(c) and 2(2)(d) from the Bill would be in terms of our proposed controls relating to weapons of mass destruction. A UK citizen might know that he could not legally communicate technology relevant to the development of weapons of mass destruction while abroad to a particular individual because he knew of that person's links to a weapons of mass destruction programme. But he would be free to communicate the same information to that person if that person came to the UK. He might do that either in person or by communicating with the proliferator from abroad. I feel sure that the noble Baroness's intention is not to create that kind of loophole.
In conclusion, these amendments would have severe consequences for the Government's proposed controls. The controls set out in the draft dummy orders published last October on the transfer of technology for use in connection with weapons of mass destruction programmes—with which Universities UK has said it is happy—could not be introduced. Neither could our proposed controls on electronic transfers of military technology be introduced in full. The Government simply cannot accept an amendment which would create such huge loopholes in the proposed legislation. An effective export control regime inevitably involves imposing restrictions on certain activities. Although I emphasise that we anticipate the impact on the academic community of these restrictions to be minimal, we maintain strongly that they are necessary.
It is nevertheless possible to provide effective protection for freedom to publish and communicate information in the public domain on the face of the Bill, and Amendment No. 22 will do that. We believe that our amendment strikes the correct balance between the need to protect academic freedom and the need for an effective export control regime. I therefore invite the noble Baroness to withdraw her amendment.
Baroness Miller of Hendon (Conservative)
My Lords, my amendment may not be perfect but it could certainly be put right at Third Reading. That would be the appropriate thing to do. The issue of academic freedom is a strong one and I have laid my wares on the table. There is no point in saying anything further. I wish to test the opinion of the House.
moved Amendment No. 5:
Page 2, line 23, leave out "An order under this section may" and insert "The Secretary of State may by order"
On Question, amendment agreed to.
Clause 3 [Technical assistance controls]:
Baroness Miller of Hendon (Conservative)
moved Amendment No. 6:
Page 2, line 37, at beginning insert "Subject to the provisions of section (Academic Freedom),"
On Question, amendment agreed to.
moved Amendments Nos. 7 to 9:
Page 3, line 13, leave out "this section" and insert "subsection (1)"
Page 3, line 19, leave out "An order under this section may" and insert "The Secretary of State may by order"
Page 3, line 22, leave out "Controls may be imposed under this section" and insert "Technical assistance controls may be imposed"
On Question, amendments agreed to.
Baroness Miller of Hendon (Conservative)
moved Amendment No. 10:
(1) Unless any form of restriction is permitted under or by virtue of any other Act, or is required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community, an order made under section 2 or 3 of this Act may not impose any control on—
(a) any information already in the public domain anywhere in the world (whether or not it is the subject of any patent, copyright, or other form of protection for intellectual property);
(b) the placing of any information in the public domain by publication orally or in writing or electronically (including for the purposes of a patent copyright or other form of protection of intellectual property); or
(c) the transfer of any information orally or in writing or electronically in the ordinary course of academic teaching or research unless the person placing or transferring the data knows or ought to have known that such information is or may be intended for 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 or other unmanned vehicles or other devices capable of delivering such weapons.
(2) Nothing in this section affects the powers of the Comptroller-General under section 22 of the Patents Act 1977 (c. 37) (secrecy directions) or any statutory modification or re-enactment thereof which otherwise affects any obligation imposed by any other enactment or at common law relating to the secrecy of official information.
(3) Nothing in subsection (1) restricts the application of transfer or technical assistance controls to the transfer of any information to a person who, or a place which, is outside the European Community by a person who knows or ought to know that the information in question is or may be intended for 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 or other devices capable of delivering such weapons.
(4) An order made under section 2 or 3 of this Act may not apply to the supply of services or the transmission of technology if that supply or transmission involves the cross border movement of natural persons."
On Question, amendment agreed to.
Clause 4 [Trade controls]:
moved Amendments Nos. 11 and 12:
Page 4, line 1, leave out "An order under this section may" and insert "The Secretary of State may by order"
Page 4, line 9, leave out from "section" to end of line 10.
On Question, amendments agreed to.
Lord Razzall (Liberal Democrat)
My Lords, in moving this amendment, I shall speak also to Amendment No. 14. The amendments relate to our simple debate in Committee about whether the Government are honouring in the Bill the commitment in the Labour Party manifesto at the last election that the new export control legislation would,
"control the activities of arms brokers and traffickers wherever they are located".
My submission in Committee was that the Bill as drafted does not currently live up to that commitment. I would like to develop that argument further. It is obviously not for me to defend the Government or explain why they are not living up to their manifesto commitment.
I believe that the importance of this issue has been demonstrated more recently by events in Zimbabwe. Paul Farrelly, who, in a former life, was the City editor of the Observer and is now the Member of Parliament in another place for Newcastle-under-Lyme, has discovered two very recent cases of extraterritorial arms brokering by UK individuals or companies, both relating to Zimbabwe. In one case, quite a well known UK-based arms dealer has been identified as the main supplier of arms to Mr Mugabe in Zimbabwe, and he brokers those arms extraterritorially. He would not be captured by the Bill as currently drafted. The second example discovered by Paul Farrelly shows that it is clear that spare parts for Hawk fighters have been shipped to Kenya and then re-routed to Zimbabwe. We understand that those transactions would not be caught by the Bill as currently drafted.
The Government's position, as clearly set out by the Minister in Committee, is that they will bring in regulations to implement the extraterritorial nature of the Bill. But the dummy orders that have been published, and the Government's stated intention, indicate that full extraterritorial controls on brokering will be imposed only for deals involving transfers to embargoed destinations, transfers of equipment used in torture or transfers of long-range missiles. That is the Government's position.
From these Benches we take the view that that does not go far enough. We believe that arms brokering in general—not limited to the three categories to which the Government have indicated they are prepared to extend the controls—meets at least five of the six Home Office criteria for determining whether extraterritorial legislation is appropriate. We made that point in Committee but the Government do not accept it. The substantive argument put forward by the Government is that, if the proposal, as set out in this group of amendments, were put into law, vulnerable individuals would be sitting brokering arms outside the United Kingdom and would not be aware that their activities were making them liable to criminal penalties in the United Kingdom. In Committee, that was the substance of the Government's defence. I find it an extremely thin argument.
I believe that anyone who has any connection with the United Kingdom and is involved in the arms-brokering business must be aware—if he is not, he should be—that extensive controls are applicable. I find it very difficult to accept the argument that the extraterritorial nature of these controls should not apply to arms dealers in transactions wherever they are located. For that reason, I commend the amendment.
The Bishop of Manchester (Bishop)
My Lords, I am pleased to speak to Amendments Nos. 13 and 14. I, like many others who are in touch with voluntary organisations throughout the world, am concerned about the apparent ease with which arms, large and small—I include both—are transferable throughout the globe.
I am glad that the UK Government have taken such a leading role within the European Union in pushing for a legally binding convention on arms brokering. That is good and to our credit. I thank them for that. However, it is important that we in the UK put our own house in order. The most vulnerable groups of people in places such as, to quote an area that I know well, central Africa—that is, many of the poor and the powerless, including many women and children—continue to suffer as the result of arms made available through arms brokering. Some such activity is conducted by UK citizens and some by people who are not UK citizens but who are resident in the UK.
Therefore, it is good that the Bill seeks to address the problems created by arms brokering by dealing with arms brokering itself. However, it is hard to understand why Her Majesty's Government are reluctant to assist in and ensure the exercise of extraterritorial jurisdiction of UK arms brokers. That is very puzzling.
As we all know, the precedent for the exercise of extraterritorial jurisdiction already exists. There is no legal impediment to creating fully extraterritorial legislation. As recently as January this year, the Government placed full extraterritorial controls on corruption offences as part of the Anti-terrorism, Crime and Security Act, ensuring jurisdiction over nationals for offences of corruption committed abroad. That seemed to be eminently sensible, necessary and wise.
Therefore, in some areas this Government are willing to make provision for extraterritorial control but they seem to be reluctant to do so in this Bill. Why cannot similar action be taken with regard to the brokering of arms and with regard to people who, while not being terrorists themselves, are equally resourceful, cunning and deceitful and enable others to engage in activities which are unhelpful towards human flourishing? There seems to be a loophole here for those who deal with non-embargoed countries. One could name some, such as Pakistan, Indonesia and Syria. The loopholes allow for deals to be made off-shore, and those loopholes need to be closed.
I am told that the military procurement documents discovered in the Democratic Republic of Congo, formerly Zaire, show that in the midst of the genocide there—I understand that 3 million people died in five years in that country—arms which originated from Albania and Israel were secretly flown to Zaire. At the time, Zaire was not an embargoed destination. From Zaire, it is a short and easy journey for the arms to reach embargoed Rwanda. Documents later found in the secret military archive of the exiled Rwandan government highlighted the central role played by a UK company in brokering those deals.
Arms brokers, such as a UK company which I shall not name, contributed to the carnage but have not yet faced persecution. As I understand it, under the present Export Control Bill, as it stands, they will remain unlicensed, unregulated and legal. I speak having met four African bishops from the Congo, Rwanda and that part of central Africa in the past 10 days. They have to live with the consequences of arms brokering as it is currently allowable. I hope that we shall support these amendments.
Lord Judd (Labour)
My Lords, I am very glad that the right reverend Prelate made those remarks about what happened in Rwanda because it is a sad and ghastly story. I agree with him that we shall all be condemned in history for our failure to have faced up to it adequately. However, I want to thank the noble Lords, Lord Redesdale and Lord Razzall, for having introduced the amendment after, if I may say so, their aberration on the academic amendment which we have just debated. I believe that this amendment achieves the purpose which they seek and which I applaud; that is, to help my noble friend the Minister in strengthening the Bill. I do not believe that the amendment on academic freedom did anything to assist in that regard.
In arguing the case, I want to emphasise several points. First, we must recognise that there is increasing evidence that arms brokers are one of the main suppliers of weapons to conflict zones. I, for one, was glad and proud when my party—the Labour Party—said in its manifesto, exactly as the noble Lord, Lord Razzall, reminded us, that its pledge was,
"to control the activities of arms brokers and traffickers wherever they are located".
That was the manifesto. The pledge is not reflected in this Bill.
In a recent opinion poll commissioned by the UK working group on arms, 80 per cent of those questioned agreed that the Government should honour their manifesto commitment and introduce controls on UK arms brokers, whether they operate in the UK or overseas. However, despite the fact that the Bill gives the Government the power to control UK brokers wherever they are located, they only selectively propose to take that power in the dummy orders for secondary legislation. That is a damaging loophole. UK dealers could simply cross over to Paris or Dublin to do a deal and so evade British controls. The point has been argued before but needs repeating. It is important to amend the Bill to ensure that trade controls comprehensively apply to UK dealers operating overseas.
As I recall, my noble friend argued in Committee that according to Home Office criteria extra-territorial controls are justified only to prevent arms brokers supplying weapons to countries under a UN, a European Union or a UK embargo or supplying torture equipment and long-range missiles. Matrix Chambers appears to be quoted fairly freely in our debates and appears to have been active in regard to this legislation. I have seen legal advice from Matrix Chambers that disagrees with that interpretation and says that arms brokering meets five of the six Home Office criteria, reminding us that only one has to be met for legislation to be appropriate. There are many cases where it is vital to control supplies of conventional weapons to countries that are not under an arms embargo.
Perhaps I may give a hypothetical example, which in current circumstances could all too easily be a real example. Consider the case of a UK broker who wanted to organise the transfer of fighter jets, combat helicopters and small arms to Israel, knowing that they would be used against Palestinian civilians in the West Bank. He would be unhindered by the current proposals if his activities were carried out overseas as Israel is not under an arms embargo. The Foreign Secretary confirmed on Tuesday in the other place—it was welcomed by all—that controls on direct UK exports to Israel have been strengthened as a result of the worsening situation in the Middle East and the unauthorised use by the Israeli armed forces of British tanks in the Occupied Territories. In those circumstances, can it be right that a British arms broker would be able to supply weapons that it now seems the Government would no longer export directly? The lack of full extra-territorial controls on arms brokers means that UK dealers will be free to undermine our own foreign policy.
The Government have also raised practical issues about enforcement. I hope that my noble friend will forgive me if I remind him that in other areas of legislation—the recent Anti-terrorism, Crime and Security Act 2001, the Misuse of Drugs Act 1971, the Chemical Weapons Act 1996, the Sex Offenders Act 1997 and the Landmines Act 1998—the Government have weighed up the issues and decided that the deterrent effect and the status of the United Kingdom in the international community mean that extra-territorial controls should be introduced. Surely, if it was appropriate in those circumstances, those arguments apply equally to arms brokering.
I conclude by asking specific questions of my noble friend. Does the Minister agree that it will undermine UK foreign policy if arms brokers are able to move overseas and engage in arms deals that would not be licensed directly from the UK? Does the Minister agree that extra-territorial controls would serve as a deterrent effect and prevent our driving this illegitimate, nasty and cruel trade overseas? Surely, it would reinforce our welcome new emphasis on conflict prevention and resolution in Africa if we took all possible steps to prevent British citizens supplying the weapons that often fuel the fighting.
The Earl of Sandwich (Crossbench)
My Lords, the noble Lord, Lord Judd, has given me the courage to mention Israel. The need to tighten our export controls, including arms brokering, has come into sharp focus with the revelation that the Israel defence force has, all along, been in breach of undertakings that British military equipment would not be used in the Occupied Territories. Our military attaché in Israel has evidence, quoted this week by the Foreign Secretary, that British armoured personnel carriers have been used in the Occupied Territories. Perhaps we should not be surprised. Therefore, it is quite possible that Britain is unknowingly assisting the present appalling attacks on Jenin, Ramullah and Bethlehem, which have been widely condemned this week in another place.
That shows that the Bill is essential. We must have proper monitoring controls. I believe that in 2000 we sold £12.5 million worth of military equipment to Israel. Israel is also an importer of our production equipment for ammunition. Along with India, Kenya, Pakistan and Sri Lanka, it is a country known to be involved in conflict and yet continually imports from the United Kingdom.
The right reverend Prelate has said, better than I, that there are already extra-territorial controls and the noble Lord, Lord Judd, quoted the examples of controls relating to drugs, chemical weapons and sex offenders and the Landmines Act. There are clear criteria—I shall mention two—on which there is international consensus that certain conduct is reprehensible and that concerted action, involving the taking of extra-territorial jurisdiction, is needed. One example is the UK Government taking a leading role in the recent convention of arms brokering at the UN conference. Another point is that the vulnerability of the victim makes it particularly important to tackle offences.
That is of particular interest to aid organisations. Quite rightly, Rwanda has been mentioned by the right reverend Prelate. Arms brokering in war zones or in places where law and order is breaking down means that the victims of brokering are frequently innocent civilians. They comprise an estimated 80 per cent of all casualties in conflicts. Too often they are women and children.
The Government have given another reason for not proceeding—lack of resources. I would be grateful for clarification from the Minister. We know that the Government have announced an additional £90 million for law enforcement to tackle organised crime, including the combating of drug trafficking. Now is not the time to go into the connections, but they are clear. Trafficking in arms, drugs and humans are typically interconnected because criminals use established routes to branch out into different commodities. I gather that the likely extra costs associated with the recommendations in this amendment would be small by comparison, although one has sympathy with governments looking for extra resources in any event. For those reasons I strongly support the amendment.
Lord Brennan (Labour)
My Lords, I have an interest to declare as a member of Matrix chambers. I do not have the distinction of having signed the advice which was referred to a few moments ago, although I am sure that had I read it, I would have found its logic and the appropriateness of conclusions compelling.
I rise as a Back Bencher to seek reassurance from the Government. Their manifesto commitment has been mentioned and it is appropriate, as the Bill draws to its close in this House, that my noble friend the Minister should give that reassurance in three areas.
First, it has been my experience, like that of the right reverend Prelate, that the oppression which many people in various parts of the developing world suffer is caused by the use of small arms, not major weaponry. Something must be done, rather than washing our hands and saying that it is too difficult a problem to cope with. It is a permanent practical problem. How do we control small arms brokering which feeds oppressors?
Secondly, on a different but related topic, if the Bill is not to control arms brokering by UK citizens abroad, how does its purpose fit into the scheme of a world-wide campaign against terrorism? The logic that we should embrace united campaigns to trace the funds that finance terrorism and join in a coalition on every front is difficult to follow when any ordinary citizen would choose the option of stopping people getting weapons as his first objective. If such controls are not in this Bill, what are the Government doing to stop arms brokering activity in the fight against terrorism?
Thirdly, my last appeal for reassurance deals with controlling the self-interest of nations. I read in the information on the debate that was sent to us that the United States controls by law the brokering activities of US citizens abroad. It has no difficulty with so-called problems of extraterritoriality. I also read that neither we nor Germany have such controls. Perhaps that includes other countries of the European Union. A few months ago we were called upon to join Europe in framework decisions for a common arrest warrant, and for the campaign against terrorism to be advanced by Europe. Please may we have reassurance that the Government are pushing the European Community member states to ensure that individually they do not destroy the common wish of the whole, which is that the brokering of arms should not be supported?
In seeking that reassurance, I commend the Government on their general objectives. An ordinary person considering the Bill will ask whether it will stop people getting round arms control. Getting on an aeroplane or living abroad is getting round such controls. How will that be stopped? My questions are designed to be constructive and I await the reassurance that many of us are looking for.
My Lords, I begin by pointing to the irony of the situation. We have just passed an amendment that will allow someone, because he is an academic, to export the blueprint instructions on how to make cluster bombs, electric shock batons, or indeed, military equipment to Zimbabwe and many other countries with an appalling human rights record. That is within our control to stop.
We are now moving on seamlessly to try stop something that has real practical difficulties in foreign countries.
My Lords, this has nothing to do with acts of terrorism. I was talking about blueprints on cluster bombs and other activities. That is exactly what the Export Control Bill will control. If that is not clear to everyone, I do not know why we are spending such a long time debating the Bill. We have just made a large hole in the Bill by saying that if someone is an academic, he can export blueprint instructions on how to make cluster bombs, electric shock batons—they have nothing to do with acts of terrorism—and any military equipment.
Baroness Miller of Hendon (Conservative)
My Lords, the Minister is not explaining the position. That is not what the amendment does. The noble Lord is also shaking his head. My amendment may not be perfect, but we took legal advice, too, and it certainly was not intended to do any of the things suggested. It was intended to protect academic freedom.
My Lords, if I am wrong I stand corrected, but that is the clear advice that we were given.
Lord Razzall (Liberal Democrat)
My Lords, I thought that I was proposing an amendment regarding arms brokering. We have now heard the Minister addressing his remarks to the noble Baroness, Lady Miller, on a subject that has nothing whatever to do with my amendment. I did not add my name to the previous amendment, so the Minister might do me the courtesy of responding to my amendment rather than entering into badinage with the noble Baroness.
My Lords, I was merely pointing out that there is a curious context in which the amendment is being debated. I do not know whether the noble Lord, Lord Razzall, voted for the previous amendment, but I merely point out that it suggests curious behaviour. There was a vote for one amendment to allow what I described and now we are proceeding to try to tighten up the Bill.
I shall now turn to the noble Lord's amendment.
Lord Razzall (Liberal Democrat)
My Lords, the Minister's behaviour is equally curious. That commitment was in the Labour party's manifesto, so why is it not being honoured now? If that is how debates are conducted in this House, it is not the place I thought it was.
My Lords, I am happy to discuss the noble Lord's amendment and deal with that issue. I wanted to put the debate in context so that people would be clear where we stood. Inevitably in such debates, attention is focused on those aspects of the proposed legislation that your Lordships want to change. That is, of course, right, but I remind the House of the great step forward that the Bill represents with regard to the control of the arms trade, as it is relevant to the debate on the amendments.
The Bill will enable the Government to introduce national controls on trafficking and brokering for the first time. The powers in Clause 4 are extensive and will allow us to introduce controls extraterritorially. We shall be using those powers to introduce controls that apply extraterritorially on trafficking and brokering of torture equipment, long-range missiles and arms to embargoed destinations. If the controls on embargoed destinations were in place today they would apply to trafficking and brokering in arms to 16 countries as well as to Al'Qaeda and Taliban terrorists. Controls on torture equipment, long-range missiles and trafficking to embargoed destinations reflect the proposals set out in our 1998 White Paper. In a significant addition, in response to the White Paper consultations, we decided to go still further and introduce controls on the trafficking and brokering from the UK of all weapons and other military equipment to any destination.
The amendment proposed by the noble Lords, Lord Razzall and Lord Redesdale, would, as we have heard, provide that any trade controls introduced by the UK Government must apply extraterritorially. Before I discuss the substantive issue of the scope of the extraterritorial controls to be introduced under the Bill, I point out that the Bill gives the Government the power to apply any trade controls extraterritorially. In that sense, it meets all our commitments as a political party.
At the same time, because we put in clear regulations the Bill focuses on the areas in which we believe we can take practical action. The terrorist action is covered by the anti-terrorism legislation, which has another set of criteria here. Perhaps I can also say to my noble friend Lord Brennan that, while the United States has legislation on extraterritoriality, it is not true to say that they find it easy to control the situation; in fact they find it extremely difficult and it leads to many problems.
The general approach of the Bill is to give the Government the powers we need for a comprehensive export control regime that is flexible enough to allow us to respond to changing circumstances, such as new international commitments, while of course setting limits, as the Bill does in Clause 5 and the schedule. We believe that is right in principle. For that reason alone we cannot support amendments that would prescribe the scope of detailed controls.
I turn to the question of the scope of the new controls that we announced we would introduce under the Bill. One of our principal arguments against extraterritorial jurisdiction for the proposed controls on all military equipment to any destination is that that would risk criminalising the involvement of UK nationals settled overseas in the legitimate export of defence equipment from their countries of residence. The amendments would mean that any controls introduced on trade in all military equipment to any destination would apply extraterritorially.
It has been suggested that it would be entirely reasonable to expect a UK citizen abroad to be aware of the seriousness of the offence of deliberately attempting to evade controls on arms brokering, carrying as it would a sentence of up to 10 years' imprisonment. But trade in military equipment carried out in accordance with the laws of the exporting country may well be perfectly legitimate. Typically, over 97 per cent of licences for exports of items on the UK's military list are granted because the export would be consistent with our announced consolidated criteria.
Similarly, the majority of trade in military equipment is likely to constitute legitimate trade. Whereas it is reasonable to expect a UK citizen abroad to suspect that he may be contravening the laws of his country if he supplies arms to an embargoed destination or supplies torture equipment or long-range missiles, it is not necessarily reasonable to expect a UK citizen abroad to know that an export of military equipment from his country of residence to a non-embargoed destination, carried out according to the laws of the exporting country, required a licence from the UK Government.
We believe that the right way to deal with the concerns raised is to encourage international co-operation. The Government will continue—this answers the point of my noble friend Lord Brennan—to press for international embargoes to be imposed on countries in regions of conflict. That is the best way to stop the supply of arms to those regions.
We supported the recently adopted European Union statement of principles on controlling arms brokering and we take every opportunity to encourage the growing international consensus on the need for controls in that area. For example, both the UN Firearms Protocol adopted in May last year and the conclusions of the UN conference on "Illicit Trade in Small Arms and Light Weapons in all its Aspects" in July recognised the need to enhance international co-operation in preventing, combating and eradicating illicit brokering.
Therefore I do not accept the principle that the action we are taking in any way undermines our foreign policy. It fits into that policy because it is a practical set of actions on which we can deliver in the future. The real difficulties are the practical ones over and above those of costs. So for the reasons I set out it would be wrong to take the prescriptive approach of these amendments.
Lord Judd (Labour)
My Lords, before my noble friend sits down, perhaps I can put this to him. He put to the noble Lord, Lord Razzall, that there was a paradox between taking the position which the Liberal Democrats took on academic freedom, and then taking the stance that they are taking on brokering. Perhaps I can in all friendship say to my noble friend that there is a paradox between taking the line which he and I took together on academic freedom and the need to infringe academic freedom—a significant thing to do in Britain—and then refusing to do anything about these reprehensible characters who carry on their trade overseas and evade control.
My Lords, I do not believe there is a paradox. There is a comparison to be made. The great difference is that one is easily within our control in the UK. We can control it and the situation is very clear. But these amendments involve trying to control something in far distant places where we could criminalise perfectly innocent people going about their jobs. I do not find that a paradox, though a parallel can be drawn between the two situations. I trust the noble Lord, Lord Razzall, will withdraw his amendment.
Lord Razzall (Liberal Democrat)
My Lords, I listened carefully to the Minister's response, particularly the last part. I share the concerns of the noble Lord, Lord Judd, that the Minister did not answer the fundamental question of how the sorts of activities that were described by all sides of the House as being of significant concern will be dealt with by the Bill. He appears to suggest that the only way to do it is by international co-operation. I will make a prediction: if that is the way Her Majesty's Government propose to do it, we shall be here in 30 years still debating the issue. It will always be easy to find rogue states that are not imposing embargoes on arms distribution under which unscrupulous UK citizens who wish to broker arms can do so without penalty. So international co-operation, I fear, will not be the answer.
I am also unpersuaded by the Minster's argument that it would be unfair for the UK citizen. The image of the poor UK citizen who is sitting somewhere in the world in one of the other countries and is not aware that Her Majesty's Government have controls over this activity does not persuade me, particularly when we look at the other offences we expect UK citizens to be aware of. However, I shall read the Minister's response in Hansard carefully and come back to this matter at Third Reading, after discussion with colleagues. I beg leave to withdraw the amendment.
Lord Joffe (Crossbench)
moved Amendment No. 15:
(1) This section applies if—
(a) a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United Kingdom, and
(b) the act would, if done in the United Kingdom, constitute a trade control offence (as defined below).
(2) In such a case—
(a) the act constitutes the offence concerned, and
(b) proceedings for the offence may be taken in the United Kingdom.
(3) For the purposes of this section, trade control offences are—
(a) the acquisition or disposal, the movement or activities which facilitate or are otherwise connected with the acquisition, disposal or movement of—
(i) missiles capable of a range of 300km or more, and specifically designed components therefor; or
(ii) any "equipment" falling within PL5001 paragraph (c) or (g) of the Military List;
(b) any unlicensed—
(i) acquisition or disposal;
(ii) movement; or
(iii) activities which facilitate or are otherwise connected with the acquisition, disposal or movement,
of small arms and light weapons, and ammunition for small arms and light weapons.
(4) Other acts done outside the United Kingdom and the Isle of Man may also be defined as trade control offences, but only if they are done by a person who is, or is acting under the control of, a United Kingdom person."
Lord Joffe (Crossbench)
My Lords, Amendment No. 13 sought to apply controls to a very wide range of goods. Amendment No. 15 limits its application to small arms, light weapons and ammunition. In so doing, it aims to meet the concerns expressed by the Minister in Committee, and indeed this evening, that it is impractical to apply controls to a wide range of goods, some of which are equally capable of civilian use.
For the sake of uniformity, the amendment also includes the three categories which the Government intend to control extraterritorially: long-range missiles, instruments of torture and goods to embargoed destinations. In brief, despite its lengthy wording, the amendment seeks to add small arms, light weapons and ammunition to those three categories.
As the Bill stands, controls on the extraterritorial brokering of small arms and light weapons apply only where part of the transaction takes place in the United Kingdom. The means of evading those controls are, accordingly, so self-evident that it is difficult to avoid the conclusion that there is no serious intention by the Government to impose extraterritorial controls on any goods other than the three categories expressly mentioned.
As Roger Berry, MP, the chair of the Quadripartite Select Committee, stated,
"A child of 5 could work out an easy way to avoid the restrictions. You hop on the Eurostar and shake hands in Lille".
Indeed, UK-based small arms dealers could not have asked for more. The Bill produces extraordinary consequences. While arms dealers based in the UK cannot export British-manufactured small arms without a licence, all they need to do is take the Eurostar to France and there they can, legally under UK law, traffic in Russian-manufactured small arms and weapons to their heart's content. It is a curious result.
As I understand the situation, the Government choose not to apply extra-territorial controls to small arms and light weapons for three reasons, none of which I suggest stand up to critical analysis. In order to analyse these reasons I fear that I shall need to detain your Lordships a little longer than I—or I am sure noble Lords—would wish.
The first reason relates to the six criteria about which we have already heard, published by the Home Office in 1996 recommending that the extension of jurisdiction could be considered in certain circumstances where at least one of the criteria was present. The Government have selected the third of these criteria, and possibly the second, on which to base their opposition and have conveniently ignored the other criteria, each one of which would justify consideration.
The third criterion on which the Government rely is where international consensus exists that certain conduct is reprehensible and that concerted action is needed. They appear to contend that there is no international consensus that the brokering of small arms and weapons is reprehensible.
In practice, however, there is a growing international consensus that brokering is in urgent need of international regulation. No one knows that better than the UK Government, who, to their credit, are taking a leading role in pushing for a legally binding convention on arms brokering, both within the EU and the UN.
It is hardly open to this Government, who are leading the way on the international control of small arms, to contend that because a handful of countries do not yet support such controls there is no international consensus and that that precludes them from effective controls legislation.
However, even if there were not such international consensus it is not correct that extra-territorial legislation is justified only in such cases. One needs to look no further than this year's Anti-terrorism, Crime and Security Act where the Government legislated that bribery and corruption committed outside the United Kingdom constituted an offence, even though in some jurisdictions this activity is not criminalised. Similarly, the Government have extended jurisdiction extra-territorially for the brokering of torture equipment, even though some of their European Union partners do not control the export of such equipment.
The second reason advanced by the Government is the difficulty of enforcement. While it is clear that enforcement in relation to extra-territorial activities is not easy, mechanisms will in any event have to be established to enforce controls on the three categories in respect of which the Government already propose to apply extra-territorial controls. These same systems can obviously be adapted and utilised in order to control the brokering of small arms, ammunition and light weapons. Can the Minister in his response explain why, if the Government can enforce controls on missiles, torture instruments and goods to embargoed countries, they cannot also enforce controls on small arms, light weapons and ammunition?
It is instructive that in January 2002, as I have said, the Government placed full extra-territorial controls on corruption offences as part of the Anti-terrorism, Crime and Security Act 2002. In the Home Office consultation paper issued in June on the issue, the Government set out their reasoning for introducing such controls in relation to corruption. They stated:
"We have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message that will have a real persuasive and dissuasive force . . . The Government, whilst recognising the practical problems associated with the prosecution of extra-territorial offences, believes that the balance of advantage rests with assuming jurisdiction over its nationals for offences of corruption committed abroad. Such an assumption of jurisdiction would put beyond doubt the UK's commitment to join forces with the international community and the fight against corruption".
We come here to the fight against extra-territorial brokering. The reasoning adopted is directly relevant to arms brokering. If the noble Lord disagrees it would be helpful if, in his response, he could distinguish between the two cases. First, why is it in order to criminalise brokering extra-territorially? Secondly, why not criminalise small arms, light weapons and ammunition which are the cause of countless deaths and hardship in many parts of the world?
The third reason advanced by the Government is the risk of criminalising the involvement of UK nationals based overseas in what they might think is a legitimate activity. I share the scepticism of the noble Lord, Lord Razzall, about the matter.
The presumption in law that ignorance of the law is no defence seems to have escaped the attention of the Government. However, setting that aside, one cannot help wondering who are these nai ve UK arms dealers brokering small arms in foreign lands who would be unaware of the provisions of the widely publicised Export Control Bill. Indeed, it is difficult to think of a subject more likely to interest them. Are they a different breed from those labelled by the Minister, Nigel Griffiths, in another place, as "resourceful, cunning and deceitful"? Are they different from those unscrupulous arms brokers who are skilled at creating shell companies and a confusing paper trail through many jurisdictions to prevent proper oversight of their work?
Is it conceivable that UK nationals brokering small arms deals overseas would not know of the Export Control Bill? They might not realise that they require a licence for brokering machine tools, but any UK national earning a living abroad brokering small arms and light weapons would surely check out whether the export control legislation affected him.
Assuming—and this is a large assumption—that such nai ve and innocent small arms dealers exist—and, if they do, there could not be more than a handful—the Government well know that there is no obligation on them to prosecute them if they feel that an injustice would be done.
In conclusion, while I believe that five out of six of the Home Office criteria would be met, I will draw attention only to two of them, each of which would be considered as sufficiently important to justify the imposition of extra-territorial jurisdiction.
The first one is where it appears to be in the interests of the standing and reputation of the UK in the international community. In that regard, the Government have worked hard to position themselves as playing a leading role in international attempts to develop more responsible attitudes towards the arms trade and especially the control of small arms. Their standing, reputation and credibility to continue to advance these views will certainly not be enhanced by introducing flawed legislation which, while purporting to control the brokering of small arms extra-territorially, does nothing of the kind by providing and creating a loophole which any and every arms dealer will exploit.
The other criterion which seems to have escaped the attention of the Government is where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence. Arms brokering tends to be prevalent in war zones or localities where systems of law and order are breaking or have broken down. In such lawless environments the victims of the impact of brokered arms are normally powerless civilians and, all too often, women and children. Indeed, it is conservatively estimated that about 500,000 civilians are murdered each year as a result of the ready availability of small arms in Africa and elsewhere, often provided by the activities of arms brokers including UK nationals based outside the UK.
I have difficulty in believing that this Government, which to their credit are introducing the Bill, most of which I warmly support, appear to consider it a higher priority to protect a handful of small arms brokers based overseas rather than to protect countless innocent victims from the impact of brokered small arms. Can the Minister in his response comment on whether that is a correct conclusion on the Government's priorities? I beg to move.
Lord Judd (Labour)
My Lords, I hope that my noble friend will take seriously what has been said by the noble Lord, Lord Joffe. Few members of this House can speak with more authority on the issue. I know personally of the many dedicated and tireless years that he gave as chair of Oxfam, constantly aware of the human consequences of the issues that we are discussing.
The noble Lord put the case so well and argued it so intelligently that I cannot better him, but I should like to try to support him on one or two points. The first is the statistics that he gave towards the end of his remarks. It is important to remember that 92 per cent of the major world conflicts in the past 10 years have been internal affairs fought with small arms and other light weapons. Half of the casualties have been civilian—most of those women and children. Since 1990, during such conflicts 2 million children have been killed, 5 million have been disabled and 12 million left homeless. Small arms have helped to create more than 300,000 child soldiers. The devastation continues today. Those are the human realities to be pitted against the administrative and legal niceties that we were discussing until the noble Lord intervened.
The Government argue that extra-territorial controls on arms brokering are not legitimate because a reasonable United Kingdom person abroad could not reasonably be expected to know that he needed a licence to broker small arms. Like others, I simply cannot accept that. The high profile of small arms on the international agenda means that all arms brokers could be reasonably expected to know that they are involved in a highly sensitive trade in which new controls and agreements are continually being introduced.
Last year, there was a UN conference on illicit trade in small arms and light weapons in all its aspects and a legally binding UN firearms protocol was agreed. It is surely the responsibility of arms brokers to keep up with their obligations under new laws and regulations, not the responsibility of law-makers to slow down until the arms brokers are ready. As the noble Lord, Lord Joffe, argued, the Government have helped to create an international consensus on the need to control the trade in small arms, including small arms brokers. Failing to introduce extra-territorial controls on UK citizens involved in the trade would run counter to that whole endeavour.
Finally, we in this House have a way of rarefying the argument from its human reality by talking in the abstract. The people involved in that brokering are cruel, sinister, calculating, greedy, wicked people, as the result of whom we are faced with the figures cited by the noble Lord, Lord Joffe, which I have tried to underline. We need to take tough action and not allow people to think that because they can go off to some country that is not playing the game, they can go on making their money as merchants of death.
Baroness Miller of Hendon (Conservative)
My Lords, the noble Lord, Joffe, explained his amendment extremely well and I cannot add to or improve on what he said in any way. The noble Lord, Lord Judd, also added to his argument. I simply say that I agree with the amendment. I tabled a similar amendment in Committee—Amendment No. 63—but I did not move it.
I support the noble Lord's amendment but, as I told him, it should go further because it does not cover a person who is not a United Kingdom national but is ordinarily resident here. I hope that the Government will accept the amendment and we may then improve the provision in that way.
My Lords, perhaps I may make one general point, because it is critical. There has been much talk about the wicked, greedy arms brokers and so on. It should be realised that the amendment applies also to a UK citizen who may be working for an Australian company that is selling rifles to America. We are not dealing with a class of arms brokers whose sole role is trading in arms across the world.
The noble Lord, Lord Joffe, suggested that one can just hop on a Eurostar to evade controls. Obviously—this is not a facetious point—France, Germany, Belgium and Holland all either have or are in the process of introducing legislation to control arms brokers. I say that to underline that the way to control such activities is through international co-operation.
The amendment would impose an immediate and complete statutory ban on the trafficking and brokering of certain long-range missiles and two classes of paramilitary equipment—briefly, leg irons and electric shock weapons—and add small arms and light weapons to those categories of goods for which trafficking and brokering controls will apply extra-territorially. It would enshrine in primary legislation some aspects of the operation of trafficking and brokering controls which we propose to include in secondary legislation, but it also goes further than the Government have announced that we intend to go.
As I have already explained when discussing Amendments Nos. 13 and 14, the Bill is designed to provide the Government with flexibility to alter controls introduced under it as necessary to respond to changing circumstances, including action within the EU, subject to scrutiny of those changes by Parliament. Enshrining details of the trade controls in primary legislation would prevent that and introduce an undesirable degree of rigidity.
In particular, the amendment would introduce a statutory ban on trafficking and brokering in long-range missiles and certain paramilitary equipment. We have made clear that those controls are intended to enable the Government to prevent the supply of equipment whose export from the UK we would prohibit. However, there are certain limited circumstances in which goods within those categories are legitimately exported from the UK. For example, long-range missiles or their component parts may occasionally be exported to our NATO allies, and such exports are fully in accordance with our obligations under the missile technology control regime.
The amendment would prevent the Government from considering any applications to trade in such goods. Moreover, the European Community is currently considering introducing its own controls on exports and trade in torture equipment. To enshrine national controls on these items in primary legislation could lead us into conflict with any future European Community legislation.
The amendment would require trade in small arms, ammunition and light weapons to be controlled whether carried out in the UK or by UK persons overseas. Noble Lords will be aware that the Government consulted last spring on the extent of extra-territoriality for the proposed trafficking and brokering controls and, as I mentioned, decided in the light of that consultation that controls on trafficking and brokering of torture equipment, long-range missiles and of arms to embargoed destinations—where the aim is to prohibit the supply of equipment whose export from the UK we have in effect banned—should apply extra-territorially, while other controls would apply to activities taking place in the UK.
Those conclusions were announced in October and reflected in the dummy draft orders. I have already explained the basis for that decision, namely the difficulties of criminalising the activities of UK citizens settled abroad who may be engaged in perfectly legitimate trade in their countries of residence. I must also say that it would be difficult to justify drawing a distinction between small arms and light weapons on the one hand, and other weapons on the other.
Nevertheless, as I explained, the Bill would not preclude the introduction of controls along the lines of those proposed in the amendment. It would permit the Government to introduce extra-territorial controls on trafficking and brokering in small arms and light weapons should we consider that appropriate in the light of significant new developments—such as, for example, reaching international agreement to apply trade controls extra-territorially or to ban certain exports.
I turn briefly to the Home Office criteria. It was argued that they would justify extra-territorial jurisdiction in this case. It was argued that the Home Office criteria would justify extra-territorial jurisdiction in that case.
In fact, the Home Office guidelines state that extension of jurisdiction overseas may be considered when certain factors are met. It also makes it clear that meeting those factors is not in itself sufficient to justify extra-territorial jurisdiction but that practical enforcement issues would also be relevant. It has been the policy of successive British Governments to resist strong attempts by other states to impose extra-territorial controls on our territory. We maintain the view that it would not be right to take extra-territorial jurisdiction over activities such as trade in military equipment, including arms, the majority of which will constitute perfectly legitimate transactions.
The Government share the concern of the noble Lords who tabled the amendments about the need to tackle the proliferation of small arms and light weapons. The new controls that we propose would contribute to that end. We have been working with other Governments to achieve international agreement on universal adoption of such controls. We are working to achieve international agreement to take action to regulate the activities of those engaged in brokering, in accordance with the United Nations programme of action on small arms and light weapons, agreed last July. The recently agreed EU common position on the introduction of trafficking and brokering controls by all member states will encourage the introduction of similar controls throughout the EU. The trafficking and brokering controls that we propose are fully consistent with the UN programme of action and the recent agreement in the EU.
The noble Lord, Lord Joffe, ended by saying that the amendment would send a clear moral message. Saying that we will do something and then being unable to deliver on it does not send the right kind of moral message. The moral message that we want to send is that, when we say clearly that we will do something, we will deliver on it. I urge the noble Lord to withdraw the amendment.
The Earl of Sandwich (Crossbench)
My Lords, is the Minister implying that, if the Government were to accept the amendment, it would inhibit progress on international legislation? That leads me on to ask whether, if there were no such international legislation, the Government would accept the amendment.
My Lords, the main point that I was making was that the main way to deal with most of these issues is through international co-operation.
My Lords, I thought that I had answered them. If there are any specific points, I shall be happy to answer them. Perhaps the noble Lord will write to me, and I shall write back to him.
Lord Joffe (Crossbench)
My Lords, so far I have not found writing to be very successful.
The Minister drew attention to the importance of international co-operation. I agree with that, but it does not prevent the UK Government from taking action in advance, as they have already done, and leading the way.
The Minister told us that the Government had the power to introduce controls. Indeed they do. What worries us is the dummy legislation and the proposed controls, which provide that any arms dealer who manages to get outside the country to conduct his or her activities will be behaving legally. I am unpersuaded by the Minister's response, but I will have the opportunity to consider what he said and, perhaps, propose the amendment again at Third Reading. I beg leave to withdraw the amendment.
Lord Davies of Oldham (Government Whip (technically a Lord in Waiting, HM Household); Labour)
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage do not begin again before 8.44 p.m.