My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sainsbury of Turville.)
moved Amendment No. 43:
Page 4, line 17, leave out subsection (1) and insert—
"(1) Controls may only be imposed—
(a) for the purpose of giving effect to any Community provision or other international obligation of the United Kingdom; or
(b) in relation to a description of thing that is within one or more of the categories mentioned in the Schedule.
(1A) In subsection (1)—
8 description of thing" means—
(a) a description of goods (in the case of export controls or trade controls);
(b) a description of technology (in the case of transfer controls); or
(c) a description of technical assistance (in the case of technical assistance controls); and
"international obligation" includes an obligation relating to a joint action or common position adopted, or a decision taken, by the Council under Title V of the Treaty on European Union (provisions on a common foreign and security policy).
(1B) The Schedule (which explains the categories in relation to which the different kinds of controls may be imposed by virtue of subsection (1)(b)) has effect."
The amendments tabled by the Government to Clause 5 and to the schedule are designed to clarify the role of the schedule and, in particular, put beyond doubt the Government's ability to impose controls in relation to any and all military goods and technologies. I shall speak also to Amendments Nos. 43, 46, 72, 74, 75, 77, 80 and 81.
At Second Reading, the noble and learned Lord, Lord Scott of Foscote, suggested that, although he understood the aim of the schedule as being to identify goods with particular characteristics that warranted their being subjected to export control, he was doubtful as to whether that was satisfactorily achieved. In particular, he queried whether the schedule would effectively catch all the firearms, military equipment and dual-use goods subject to control under the present regime. Other comments made in the House and elsewhere in the context of debate about the issue of sustainable development underlined the fact that there was a good deal of confusion as to the function of the schedule, which, as the noble and learned Lord, Lord Scott of Foscote, rightly suggested, is to identify the types of goods and technologies in relation to which controls may be introduced and the function of guidance in forming the basis for licensing decisions.
In the light of that, the Government have looked again at the schedule and Clause 5, which introduces it, and have concluded that they should be clarified to avoid the confusion that has arisen and put beyond any doubt the Government's ability to impose controls on all the firearms and other military equipment or technology as well as the paramilitary and dual-use equipment and technology that we currently control. We have also tabled amendments to strengthen the provisions on the guidance to be issued governing licensing decisions, which thereby does away with the need for a direct link between the schedule and the matters to be taken into account in such decisions. We shall debate those shortly, but I mention them now, as they will also contribute to clarifying the function of the schedule.
I shall explain in more detail what each government amendment to Clause 5 and the schedule will do. The key amendment to Clause 5 is Amendment No. 43. It will introduce new text to Clause 5 that makes clear the two basic reasons for which controls call be imposed; namely, to give effect to our Community and international obligations, on the one hand, and in relation to certain types of goods and technology and related technical assistance, as defined in the schedule, on the other.
The amendment renders unnecessary the provisions in paragraphs 1 and 2 of the schedule, which provide for controls to be imposed in relation to Community and international obligations. Amendment No. 72 would delete those paragraphs. Amendment No. 46 contains some purely consequential amendments needed to take account of the revised text to be introduced by Amendment No. 43.
I turn to the amendments to the schedule. The key amendment is Amendment No. 74. This makes it clear that controls can be imposed in relation to military equipment and technology, irrespective of the consequence which its export, transfer or trade might have or which technical assistance provided in relation to it might have. It is clearly right that the Government should be able to continue to control export and related activities of all military equipment and technology, which of course forms the core of our strategic export control regime. While we believe that the schedule as currently drafted should allow this, we have concluded that it is right, as the noble and learned Lord, Lord Scott, recommended, to make that explicit both for the sake of transparency and to put the matter beyond any doubt.
I should perhaps observe at this point that most dual-use goods and technologies are controlled under the directly applicable European Community law, so it is not necessary or appropriate to refer directly to dual-use goods and technologies in the same way we refer to military goods or technologies. As I have already explained, Clause 5 as amended specifies that the Government can impose controls to meet Community obligations.
The new paragraphs on military equipment and technology do not replace the existing schedule, but supplement the existing provisions in the schedule. While the new paragraphs on military equipment and technology, together with the provisions in Clause 5 on international and European Community obligations, will provide the Government with the power to control all the military equipment and technology, and the vast majority of dual-use equipment and technology that we currently control, we need to continue to be able to impose controls on other items whose export, transfer or trade could have harmful consequences, or to which the provision of technical assistance could have harmful consequences.
I can best illustrate this by quoting a couple of examples of items we currently control which are neither controlled to meet Community or international obligations, nor are military equipment. We have introduced controls on certain non-military explosives because of the risk of these being used for terrorism and we have controls on certain paramilitary equipment, including equipment for which there has been evidence of its use in torture, because of the scope for these being used for internal repression or human rights abuses.
The table in the schedule therefore remains necessary to ensure that the Government can continue to place controls on these types of goods and technologies. Amendments Nos. 75 and 80 simplify the provisions which establish the role of the table and contribute to the overall clarification of the schedule which we believe our amendments as a whole achieve. Amendment No. 81 is purely consequential.
I believe that these amendments greatly improve the Bill by making much clearer the function of the schedule. The noble Lords, Lord Phillips, Lord Razzall and Lord Redesdale, have suggested some changes to our Amendment No. 43 and I shall be interested to listen to their proposals. I beg to move.
I shall cease to be shy and shall come to the fore. I shall speak to Amendments Nos. 43A and 43D, which are part of the same group. They are of the most innocent kind. They are designed to render in intelligible English that which one can honestly say is unintelligible. Indeed, when reading the astonishing phrase, "description of thing", one probably ought to utilise a voice which does not vary either up or down. It is a true example of George Orwell's "newspeak". His book, Nineteen Eighty-four, states:
"Newspeak was founded on the English language as we now know it, though many Newspeak sentences, even when not containing newly-created words, would be barely intelligible to an English-speaker of our own day".
I apologise to the Committee. I have been mistaken because I thought that Amendment No. 43 was the amendment which was to be moved and that the other amendments were grouped. I was obviously mistaken in that assumption and therefore I thought that I was speaking to a group of amendments. I apologise to the Committee for speaking out of order.
The purpose of Amendment No. 43B, which amends the Government's amendment, is to remove the potential contradiction between the language used in the amended Clause 5 and the amended schedule and ensure that the Government have the powers they seek to control all military and security equipment.
There is currently an ambiguity in the Government's amendment to the schedule when read with the amended Clause 5. Under the amendment to Clause 5, controls may be imposed only in relation to the categories of "things" referred to in the schedule and not to things which belong to categories not referred to even where they may have relevant consequences. That is because Clause 5(1)(b) as amended states that controls may be imposed only in relation to a description of things that is within one or more of the categories mentioned in the schedule.
That language would appear to preclude the imposition of export or trade controls, for example, in relation to goods or equipment which are not referred to in paragraph 1(1) of the schedule. However, paragraph 2 of the schedule is drafted so as to enable export, transfer, technical assistance and trade controls to be imposed in relation to any "thing" which is capable of having a relevant consequence.
The definition of "military equipment" in paragraph 1 of the amended schedule appears to be inclusive rather than exhaustive, but it is unclear whether it is broad enough to include all the items that may now or in the future be regarded as necessary to control; for example, many items for internal repression, such as handcuffs and riot shields. It would follow that in relation to items which are not referred to, controls may not be imposed even where those items are capable of having the relevant consequences set out in paragraph 2 of the schedule.
"The DTI expressed the view that it would still be possible under this amendment to impose controls over a wider range of goods than those specifically referred to in the Schedule, provided that they were capable of having a relevant consequence (and leaving aside the power to impose controls in order to give effect to EC/International obligations, which is dealt with separately). In my view, that interpretation is inconsistent with the language of Clause 5 which clearly confines the scope of Clause 5(1)(b) to things within one or more categories referred to in the schedule".
We on these Benches feel strongly about this matter. Obviously, the purpose of the amendment is to be as inclusive as possible. However, in order that we do not have to bring the matter back at later stage, it would be helpful if at this stage the Minister could give an assurance that the Government believe the loophole has been covered with the strongest language possible.
The amendments tabled in the name of the noble Lord, Lord Phillips of Sudbury, and the amendment proposed by the noble Lords, Lord Razzall and Lord Redesdale, to government Amendment No. 43 seek to clarify the new text that would be inserted by the government amendment. Naturally we share the objective of achieving clarity in the Bill. Let me say that I appreciate the constructive intention that lies behind the amendments and it is in that spirit that I should like to respond.
We have considered the amendments very carefully, but the Government believe that their own draft of subsection (1A) in Amendment No. 43 achieves the desired result and that the further amendments will not quite work. Turning to the amendments tabled by the noble Lord, Lord Phillips, I grant that the use of "description of thing" in the government amendment does not at first appear to be particularly elegant. Like myself, the noble Lord was probably brought up not to write English essays in which one referred to "things" all that often. However, I hope to explain why in this case it is appropriate and clear. The important point is that the Bill should express agreed policy in language that is technically accurate in a legal sense.
Subsection (1) of Amendment No. 43 refers to controls that may be imposed only,
"in relation to a description of thing that is within one or more of the categories mentioned in the Schedule".
It is in relation to that subsection that the use of the expression "description of thing" is used again in subsection (1A), so they should be considered together. I do not think there is any doubt at all what is meant here; it is simply a question of how it is expressed.
The reason why the expression "description of thing" is used in the Bill is that it is and has to be generically wide enough to embrace three quite distinct categories, or—it is difficult for obvious reasons to avoid saying this—three distinct "things". Those three things are goods, technology and technical assistance. There is no adequate alternative to "description of thing" that could include all three.
If we turn to the noble Lord's alternative wording, his proposed replacement of "description of thing" with "goods, technology, or technical assistance falling" by itself does appear reasonable. It is simple and may seem to have an advantage in avoiding the use of the expression "description of thing". However, as I mentioned a moment ago, subsections (1) and (1A) need to be considered together. The consequence of using his proposed wording in Amendment 43A is that it lacks a distinction between the terms used; namely, goods, technology and technical assistance, and the terms employed to elucidate their meaning in the definition in his Amendment No. 43D. The result is repetition which, unfortunately, goes against the generally accepted practice of not using terms to be defined as part of a definition. Thus, where we are told that "goods" means "goods", and "technology" means "technology", we are none the wiser. That failure is not rescued by the additional text in brackets.
In contrast, the use in government Amendment No. 43 of the term "description of thing" serves as a hook on which to catch the three separate terms—goods, technology and technical assistance—and it does so without repetition. Hence, in subsection (1A) "description of thing" as the generic expression used in subsection (1) enables us to say with elucidation and without repetition that it means a "description of goods", and similarly with a "description of technology" and a "description of technical assistance". In each case the word "thing", with its useful generic quality, enables us to embrace all three; that is, goods, technology and technical assistance.
I agree that much of this response may sound rather like words written by George Orwell, but this is the technically correct answer to the position.
The amendment tabled by the noble Lords, Lord Razzall and Lord Redesdale, would provide that "description of thing" referred only to the relevant consequences listed in the schedule. However, as I have already explained, government Amendment No. 74 now makes explicit that controls can be imposed in relation to military equipment and technology. That is irrespective of whether the equipment or technology would have one of the relevant consequences set out in the table to the schedule. For that reason, this amendment would undermine the additional certainty and clarity which Amendment No. 74 will introduce as to the Government's ability to control all military equipment and technology.
I hope that noble Lords will feel able to accept my explanation of what at first appears rather awkward language in Amendment No. 43 and agree that the government amendment does achieve what it sets out to do. In the light of that, I hope that noble Lords will withdraw their amendments and I invite the Committee to support the Government's proposed amendments as tabled to Clause 5 and the schedule.
I understand that my noble friend on the Front Bench has tried most helpfully to clarify the situation, but I hope he will agree that one of the difficulties that both he and Members of the Committee are facing is that the purpose of the Bill seems to have changed over the past year. When the Bill was discussed early last year, the whole objective was to define the purposes for which equipment might be used. Now the emphasis has changed to describing the things that might be used for the wrong purposes. Of course when one starts to describe "things", immediately there are difficulties, because however one tries to draw up the descriptions, the parameters may or may not be adequate. In that context, I wonder whether my noble friend might be tempted to take this away and think on it a little further before the final stages of the Bill.
Perhaps I may cite a specific example. My noble friend has suggested that he needs broad categories, but I wonder whether those categories are sufficiently broad. For example, riot shields, tear gas and handcuffs are not necessarily designed for military use. They are not firearms, they do not require military technology and they are not used to produce military equipment. As I understand it, under the terms of Amendment No. 43 they could not be controlled. However, they could be controlled under the wording of Amendment No. 75. Here lies the inherent contradiction to which the noble Lord, Lord Redesdale, so clearly referred.
Amendment No. 75 states that:
"Export controls may be imposed in relation to any goods the exportation or use of which is capable of having a relevant consequence", as defined in the list set out in the schedule, such as internal repression or regional instability. That is obviously a sensible piece of drafting because it gives the Government a power to control a range of equipment which may not be necessary to fulfil an international obligation, or which may not fit into one of the categories set out in the schedule, but which could, for example, be used for internal repression.
I also understand that my noble friend's own department has stated quite rightly that it favours the "belt and braces" approach as laid out in Amendment No. 75 amending the schedule. But if the Government are not inadvertently to limit the range of equipment that they are able to control, surely they should accept that Amendment No. 43B, moved by the noble Lord, Lord Redesdale, would make Clause 5 clearly consistent with the schedule which, in all humility, I suggest to my noble friend is not altogether self-evident and clear at the moment—and that is to put it mildly.
I wonder, therefore, whether in his reply my noble friend can give a specific assurance to the Committee, on the record, that the Bill includes the power to control all police and security equipment under the wording of amended Clause 5.
I can give that assurance very clearly. Members of the Committee will see that subsection (1) of the amendment that I am proposing states that everything in the schedule can be covered. The schedule covers not only military equipment, but also all the categories which have relevant consequences. The particular issues mentioned by my noble friend are all ones which have relevant consequences in terms of the different things mentioned under those headings.
I can give my noble friend a complete assurance that all the issues to which he has referred will be covered. Indeed, I believe that when on Report he sees the Bill as amended, the position will be much clearer.
Before the Minister sits down, perhaps I may put to him one further point with regard to Amendment No. 43B. The potential loophole that we envisage could be one for emerging technologies that are not covered or even seen as potentially repressive technologies. I refer to electronic Taser weapons which at the moment are seen as police enforcement weapons, but with the development of technology could have far more significant and sinister purposes.
Clearly it is impossible to envisage all the emerging technologies. That is why in the Bill we give ourselves the flexibility to introduce, reasonably quickly, new areas of control. When we come to those parts of the Bill, I hope that the noble Lord will remember that point. If some kind of technology which has not been foreseen should emerge, we need the flexibility quickly to take action to control it.
In responding to my two amendments the Minister made three points. The first point was that they led to repetition; the second point was that this is a technical clause; and the third point was that at second or third sight his amendment would seem a good deal better than at first sight. I think he said twice that at first sight it looked ugly or codswallop, or whatever word he used.
Let me take those justifications in reverse order. At first sight it looked gobbledegook; at second sight it looked an abortion; at third sight I was boiling with lawyerly rage. I was boiling with lawyerly rage because I am making a serious point with these two amendments. It is not enough for the Committee to say that this is a technical matter and that this is a technical amendment. Human beings have to interpret the statutes that we leave them with, and the danger in this House and the other place is that, week by week and year by year, we enter into legislation that is so alien in its language and so complex in its execution that the ordinary citizen of this land is left totally at a loss.
I hope the Committee will not think that I am getting too embroiled in a small matter, but we must put a stop to this kind of language. As the Minister refuses to accept my simple point, I shall read his amendment again. It states:
"Controls may only be imposed . . . in relation to a description of thing that is within one or more of the categories mentioned in the Schedule".
That is not good enough. My suggested improvement may itself not be good enough, but we have to do better. This is not a technical or trivial matter.
As to the question of repetition, this is not simply repetition. My second amendment states:
"'goods'" means goods (subject to export controls or trade controls)"— which are terms of art within the Bill—and similarly for "technology" and "technical assistance".
I shall have to study the Minister's justification carefully, but, on listening to it, it seemed to be without virtue and to have behind it a degree of amour propre on the part of the draftsman, which is not a relevant consideration in these matters.
I came into the Chamber and I heard the Minister giving his reply. I looked at him and he started to grin. He realised that what he was saying was the most frightful load of codswallop, although he did his level best to cover up. Forty million years ago we were in the same House at Eton together, so I can say this to him. Please, please listen to the noble Lord, Lord Phillips. What he said is very real. We cannot pass into legislation that kind of wording. The Minister knows this. I saw his face—it was totally glorious and he giggled feebly.
The Minister was very clever in Mr Gowan's house—much cleverer than I was—so will he please go away and agree with the noble Lord, Lord Phillips?
This is not on the basis of any relationship that the noble Earl and I may have had at Eton. Although I believe the amendment to be legally correct, technically right and absolutely clear, I agree that it sounds extremely inelegant. On that basis, I shall try again to see whether we can achieve something more elegant. It will have to meet the legal requirements and be absolutely clear. Although I believe that it is both clear and meets the legal requirements as it stands, in the spirit of the defence of good English I shall try again to meet the noble Lord's points.
This amendment has been redrafted because government Amendment No. 43 seeks to change the schedule so comprehensively that the part of the schedule that I had hoped to amend in order to draw the Government's attention to a particular issue suddenly disappeared and came under subsection (1) of Amendment No. 43.
My amendment seeks to place on the face of the Bill a requirement that the Government shall make control orders which put into effect any obligations which the United Kingdom may face as a result of the Government signing up to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
Let me make it clear that I wholeheartedly support the Government's signalled intention to sign up to the convention, but one needs to know what will be the consequences and how they will fall within the remit of the Bill.
Page 22 paragraph 3 of the Government's consultation paper stated:
"When taken together, the purposes at paragraphs 1, 2 and 4 of the schedule of the draft Bill"— now amended by the Government to become Clause 5(1)—
"will allow the Secretary of State to make export control orders to establish a regime which would enable him to identify and control the export of goods of significance to the culture of the United Kingdom and Europe".
"If, as announced, the United Kingdom Government accedes to the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of cultural property, the purposes would allow the Secretary of State to implement measures in relation to export control which may contribute to giving it effect in United Kingdom law."
That consultation paper was published on 20th March 2001. Shortly before that, on 14th March, the Department for Culture, Media and Sport issued a press release saying that the United Kingdom's signing of the 1970 UNESCO convention was welcomed by the then Minister for the Arts, Mr Alan Howarth, as an important step in tackling the illicit trade in art and antiquities.
The Committee will no doubt be aware that the convention gives members who are signatory to it the right to recover stolen antiquities—primarily ancient and religious artefacts—which turn up across the globe in the countries of fellow signatories. But what has happened since the press release? Not much it would seem, and yet there is reference in the Bill to international obligations and, prior to the Bill, the Government made it clear that the UNESCO convention was certainly part and parcel of what should come within its remit.
Is the Minister aware of a Written Question on this subject, which was tabled by my noble friend Lord Renfrew, who is in his place, and answered by the noble Baroness, Lady Blackstone? My noble friend asked the Government,
"When they expect to complete the procedures for the ratification by the United Kingdom of the 1970 UNESCO Convention".—[Official Report, 28/1/02; col. WA 18.]
The noble Baroness, Lady Blackstone, answered by referring to Mr Howarth's promise of 10 months previously and simply said that she hoped to be able to make a further announcement shortly.
Can the Minister tell the House what progress has been made with the consequences of our accession to the UNESCO convention, if we have acceded to it? Which parts of the convention are relevant to the operation of the controls in the Bill? What other international obligations could fall under the restrictions of the Bill? I beg to move.
I am grateful to my noble friend for moving the amendment. The face of the Bill is very short of references to cultural properties, although they fall within its scope. Indeed, this is where the protection of our cultural properties and the regulation of the import and, particularly, the export of illicit cultural properties falls. As far as I am aware, there is no other such legislation other than one piece of Common Market legislation which has been subsequently brought into effect in this country. These are important matters which are not made clear throughout most of the Bill.
It is a matter for satisfaction, a matter of progress. A year ago, the Government announced their acceptance of the proposal by the illicit trade advisory panel, chaired by Professor Norman Palmer, that the 1970 UNESCO convention would after all these years be ratified by the United Kingdom. The working party went into great detail. It explored the various implications and concluded that it would be possible for the United Kingdom to ratify the convention without further legal provision.
It is therefore puzzling that, although an announcement was made in March last year, there has been no clear or evident progress. For that reason, in January, I set down a Question for Written Answer. I was pleased to receive from the Minister for the Arts the reply to which my noble friend referred, indicating that she hoped to be able to make a further announcement to this House shortly.
What are the impediments? That is the specific question I posed previously to which I did not receive a specific enough answer. I am not aware of any impediments—nor are those with whom I am acquainted who know about the law relating to cultural properties. I understand that it was necessary to arrive at certain technical clarifications with the legal departments in Scotland to ensure that there would be no contradictions and that Scottish law would be in harmony with United Kingdom law. However, it was my understanding that those issues had been entirely clarified.
Therefore, I very much hope that in responding to the amendment the Minister may be able to tell us what precisely are the impediments to the papers now being laid by the Government before both Houses of Parliament. I believe that that is a formal procedure which will take only a few weeks, and that it will have the effect of ratifying the Bill. It is a simple matter of laying orders. I should be interested to know what is impeding the Government from laying these important but straightforward orders.
This is a helpful amendment. I hope that the Minister will have in mind not only the possibility of an order preventing the export of British antiquities but also the separate and different case of antiquities belonging to another country which have been brought to London, probably for sale and possibly for re-export. A long and complicated case relating to Egyptian antiquities was written up in the press recently; but is by no means the only such case. This is an important matter.
I support the amendment. The noble Lord, Lord Renfrew, referred to the announcement made last March. It was made to a conference hosted by the Institute of Field Archaeologists at the Society of Antiquarians at which the noble Lord and I spoke. The announcement was greatly appreciated by the archaeological community. The amendment moves that process on. I echo the question: when will the necessary convention be ratified?
We have a great deal of sympathy with the thinking behind the amendment. It is the Government's intention to accede to the 1970 UNESCO convention. The Government believe, however, that the amendment is unnecessary and that it would have some unfortunate consequences. It is unnecessary because the Bill already provides that a control order may be made for the purpose of giving effect to any,
"other international obligation of the United Kingdom"— and that commitment will be unchanged if the government amendments to the clause are accepted.
The Government announced in March 2001 that they intended to accede to the convention. That remains our intention. As the convention will impose international obligations on the UK, the Bill as currently drafted is sufficient to cover the situation were the Government to decide that a control order was needed to give effect to an obligation arising from the convention or any other to which they might decide to accede in future.
The key point is to ensure that the Bill contains the power to enable the UK to accede to its international obligations—whether in regard to UNESCO, or any other international obligation. As I have mentioned, the Bill provides that necessary power. In singling out UNESCO, the amendment is, therefore, rather specific and could be limiting. For those reasons I hope that the noble Baroness will withdraw her amendment, although we recognise the intention behind it.
The noble Lord, Lord Renfrew, raised the point—confirmed by the noble Lord, Lord Redesdale—that accession to the UNESCO convention was identified as a government commitment almost a year ago. It is the case that it has taken rather longer than anticipated to accede. Over that time, a number of legal and policy issues have required clarification in consultation within government, as have some aspects with regard to Scottish legislation to ensure compatibility. There has also been consultation with UNESCO on some outstanding issues. I am happy to place on record the fact that this process is reaching completion. My noble friend Lady Blackstone hopes to be able to make an announcement to House very shortly.
The noble Lord, Lord Hylton identified areas of considerable complexity. That explains why great care has been taken to ensure that all aspects are covered before we eventually sign up to the UNESCO convention. The noble Lord's point perhaps helped to reinforce the Committee's appreciation of just how carefully the Government scrutinise such issues. I reiterate that I am able to give an assurance that an announcement will be before the House in the very near future.
I thank the Minister wholeheartedly for his statement that we can expect to hear from the noble Baroness, Lady Blackstone, "very shortly"—which in government terms means that I may yet to live to hear it! I hope that it will be possible to make the announcement before Report. I shall consider between now and then the wording of a possible further amendment. I should, of course, be delighted to give the noble Baroness, Lady Blackstone, the opportunity to make such a statement on the Floor of the House rather than by Written Answer.
I am grateful to my noble friend Lord Renfrew and to the noble Lords, Lord Hylton and Lord Redesdale, for their support. I am sure that it was given on the practical basis that we do not want in any way to limit the scope of the Bill or to exclude the possibility of the Government being able to accede in the future to other international obligations if it is proper to do so. The amendment was merely to highlight the fact that there is a long-outstanding matter with regard to accession to the UNESCO convention and that we are becoming somewhat impatient.
As I said, I shall consider carefully whether to bring an amendment back on Report which might properly raise the matter without being limiting. In the mean time, I beg leave to withdraw the amendment.
In the absence of my noble friend Lord Phillips of Sudbury, I shall speak to Amendment No. 45, which is grouped with Amendment No. 47, tabled by the noble Baroness, Lady Miller of Hendon. The purpose of the amendment is to ensure that the House has an opportunity to scrutinise any resolution laid before it. I beg to move.
I advise the Committee that if the amendment is agreed to I cannot call Amendment No. 46 and that if Amendment No. 46 is agreed to I cannot call Amendment No. 47.
The Explanatory Notes on Clause 5(2) state:
"It may be considered necessary . . . to introduce orders imposing export controls, transfer controls, technical assistance controls or trade controls on a temporary or emergency basis".
I accept that that is possible. Amendment No. 45 also accepts that.
However, we believe that the emergency powers that the Government are seeking last far too long. The Government seek to be able to make an emergency order that would last for 12 months. I cannot conceive of an emergency that would last for that period. Much more importantly, the Government are seeking powers to make orders that are not restricted by the schedule, which entirely defines the reasons for which a control order may be made. In other words, Parliament would be giving the Secretary of State the power to make control orders for specific purposes and in specific circumstances, but the Minister is seeking powers to go outside those restrictions in some unspecified situation.
The only restriction that the Government accept is that Clause 12(2) requires such an emergency order to be ratified by a positive resolution of both Houses of Parliament within 40 days. In our view, that is the wrong way of going about the problem.
If such unforeseen circumstances arise, of course the Government should make an emergency order. However, experience tells us that those who legislate in haste often repent at leisure. Either the emergency situation will have resolved itself within the three months that we are proposing and the order can be allowed to lapse, or the situation will have clarified itself into one that requires a permanent control order. As that situation is outside the ambit of the schedule, it should be dealt with by an amending Act, not by a so-called temporary emergency order.
What happens if the emergency is not resolved within the 12 months that the Government are asking for? Is there to be a series of orders lasting 11 months and three weeks, even with the positive resolution procedure in place? It cannot be right for the Secretary of State to have the power to make orders having a considerable effect on individuals, and even to subject them to criminal sanctions, when the basis of those orders is not defined in the substantive Bill.
I support my noble friend Lord Redesdale on Amendment No. 45. Under Clause 5, the Minister can make a temporary order, provided he lays it before Parliament after 40 days. The amendment would deal with a situation in which a temporary order had a duration of less than 40 days. Bearing in mind that that would be likely to happen only in circumstances of significant emergency, we feel that it would be appropriate for there to be parliamentary scrutiny of such an order. This is a lacuna in the Bill that ought to be rectified. I would welcome the Minister's response to that point.
Does the noble Lord agree that, further to the important point that he has just made, it is not inconceivable that under the arrangements proposed an order could escape scrutiny altogether, because it could relate to something that was going to happen and finish within the 40 days? That is a serious matter, if we take into account the firm strictures of the noble and learned Lord, Lord Scott, on the arms to Iraq affair.
Both amendments relate to the provision in Clause 5(2) that allows orders to be made for reasons that fall outwith the schedule. Amendment No. 45 would provide that such orders should be subject to parliamentary scrutiny by means of the draft affirmative resolution procedure. Amendment No. 47 would limit the time that such orders may remain in force without the further express consent of Parliament from 12 months to three months. I shall deal with the two amendments in turn.
On Amendment No. 45, the Government agree that any orders made for reasons that exceptionally do not fall within the schedule must require the express approval of Parliament by means of the affirmative resolution procedure. However, we believe that the delayed rather than the draft affirmative resolution procedure is the more appropriate tool for seeking such approval. Clause 12(2) provides for that. It is important to appreciate that any orders made by virtue of Clause 5(2) would most likely be needed to respond to unforeseen emergency situations, when the consequences of any delay might well be serious, such as in the case of emerging technologies that no one had thought of. It is vital that the Government should be able to introduce new controls to deal with such situations immediately. With the best will in the world, one cannot be confident that orders that cannot be introduced until approved in draft by both Houses of Parliament will not be subject to any delay. I therefore invite the noble Lord to withdraw the amendment. Our proposals strike the right balance between being able to move swiftly to deal with unforeseen circumstances and giving Parliament the right to express its views within 40 days.
Amendment No. 47 would reduce significantly the time that temporary orders may remain in force without requiring the further approval of Parliament. While we understand the particular concern that attaches to the order-making power in Clause 5(2), the Government believe that it is reasonable and appropriate that any order made under this part of the Bill that has been expressly approved by both Houses of Parliament may be operated for up to 12 months until it lapses or is required to be resubmitted to Parliament for each House to determine whether it may remain in force. It is reasonable to expect that Parliament should be capable of judging whether any order is fit to be operated for a period of up to 12 months. I repeat that any orders introduced under Clause 5(2) are likely to be needed to deal with serious emergency situations. The Government believe that 12 months is a reasonable compromise between the wish to ensure that any such temporary emergency controls can remain in force for as long as they are needed and the proper concern that controls made for reasons outwith the schedule should not be operated indefinitely.
In view of that explanation, I invite the noble Baroness and the noble Lord not to press their amendments.
Is the Minister prepared to comment now or on Report on the point made by the noble Lord, Lord Judd, that if the Bill is passed in the Government's proposed format, it would be possible for an order in emergency circumstances with a termination date of less than 40 days to be brought forward without any parliamentary scrutiny? What is his comment on that?
An order brought forward in that form would have to be debated. However, the need to act quickly may require that action be taken before debate by Parliament. I shall write to the noble Lord to confirm the situation, but such an order would have to be debated.
moved Amendment No. 46:
Page 4, leave out lines 21 to 31 and insert "for its expiry no later than the end of the period of 12 months beginning with the day on which it is made.
(3) The power to make an order which—
(a) amends an earlier order; or
(b) revokes and re-enacts (with or without modifications) an earlier order, is restricted by subsection (1) only if and to the extent that the order strengthens the controls previously imposed or imposes new controls.
(4) In subsection (3) "an earlier order" does not include an order"
On Question, amendment agreed to.
moved Amendment No. 48ZA:
After Clause 5, insert the following new clause—
"RESTRICTIONS ON CONTROLS RELATING TO INFORMATION
(1) An order made under section 2 or 3 of this Act may not impose any control on—
(a) any information 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 (including for the purposes of a patent copyright or other form of protection of intellectual property) unless any form of restriction is permitted by virtue of any other Act.
(2) An order made under section 2, 3 or 4 of this Act may not impose any control on any information transferred orally or in writing or electronically in the ordinary course of academic teaching or research unless the person transferring the data knows or ought to have known that such information would have a relevant consequence as defined in the Schedule."
In speaking to this amendment, I should like to place on record my disquiet about some of the ways in which we have reached the current position. I say "disquiet" rather than "anger" although I felt quite cross at the time. Last Wednesday, the Minister was extremely courteous to me when he telephoned and explained that, although Clause 7 would not be included in the Bill, I could nevertheless speak to my amendments to Clause 7, and he would reply to those amendments. I expressed my concerns on the telephone.
The following day, as agreed, my office telephoned his office. I was told that I should change my amendment into a new clause and move it after Clause 6, enabling me to speak before the Minister moved his relevant amendment. The Public Bill Office confirmed that it had been told exactly the same thing by the department. We went away after tabling such an amendment.
It was not until Friday morning that we discovered that my amendment was not after Clause 6, but after Clause 7. The reason given for the change was that Clause 6 had been dealt with in our first day in Committee. After quite a hassle—it was not unpleasant, but the matter has taken quite a bit of time to work out—I found myself able to introduce this amendment after Clause 5. I raise the issue with the Minister simply because this is a very important amendment on which I have worked very long and hard, and it is important that it be considered in the right place.
I can also tell the Minister that it was when I came in on Friday—the House was sitting to consider the tobacco Bill, although I was not involved—that I discovered where my amendment had been placed in the Marshalled List. I found on my desk a letter from him saying that the New Scientist article contained many inaccuracies but that there would be no apology until after today. Therefore, had I not come in on Friday, I would have arrived today prepared to discuss my amendment—now new clause—which was based on the article and on the briefings from Universities UK, unaware that, somewhere along the line, the Government did not agree with them.
I think that, as the Minister was kind enough to telephone me on the Wednesday, a telephone call could have been made to me about this matter. It should not have been dealt with in a letter left on my desk on a Friday afternoon. In taking briefings from the people concerned, I have had to contact America and serious academics in this country. I feel that this is an entirely improper way of dealing with this type of amendment. I simply wanted to put my feelings about that on the record.
This is a major and important amendment which I am proposing at the request of Universities UK, formerly known as the Council of Vice Chancellors and Principals, and the Association of University Teachers, which represents 45,000 academic and academic-related staff in universities and colleges. I am very glad to bring forward the amendment as I very much believe in its essence. It is a very important amendment which I hope the Government will decide to accept.
The amendment covers a subject of the gravest concern, prompting anxiety throughout the whole of scientific academia, both among individuals and the institutions in which they work. I have been briefed of the problem rather late in the Bill's progress and it may very well be that the proposed subsections are not in the best possible place, especially in view of the late changes and new clauses that the Government themselves have just introduced to the Bill, eight months after it was first presented to Parliament. However, so long as the Government accept the principles behind the amendment, I am sure that we shall be able to agree a new spot and any necessary modification to the wording before we reach the next stage.
Export controls on goods affect mainly trade. Important as the free movement of goods may be, it is easy to understand the claims of public policy in the interests of national security, and it is relatively easy to define the boundaries of what types of goods may not be exported—such as weapons or anything capable of being used as such. However, control over the export of ideas is a radically different issue. The whole problem dealt with by these amendments revolves around the issues of freedom of expression, freedom of teaching and freedom of research. Those freedoms are fundamental human rights that give way less readily to the claims of the state. The extension of controls on goods to controls on intangibles—the control of ideas—is therefore a radical step with serious constitutional implications.
Goods are exported if they are physically moved out of the country. Ideas are physically harder to control. In order to control the export of ideas, which is what the Government are attempting to do in Clause 2(2)(c), they propose—mark this well, my Lords—to control the exchange of ideas even within the United Kingdom. The Government offer the sop of a qualification that this totalitarian restriction applies only where,
"there is reason to believe that the technology may be used outside the United Kingdom".
Practically any publication of information may result in it being used abroad. It can certainly be assumed that any technology taught to foreign students will be used by them when they return home. Clearly the Government, despite their protestations to the contrary, are taking powers to license foreign students and regulate what they may be taught. What is to be avoided is any power in Whitehall to impose prior scrutiny of research and restraint of the publication of the results of research.
The Minister has given assurances to some academic representatives that the Bill will not be used to restrict the transfer of information already in the public domain. "Public domain" has not been defined by the Minister, nor is it in my amendment; however, I am sure that there is no difficulty on that score. It is already a term with which the courts are familiar in the application of the Patents Acts. I have tried to make it plain that "public domain" is not restricted to the United Kingdom. Furthermore, freedom of publication must apply to the results of research.
The Minister disclaims any intention to impose such controls and points to the existence of exemptions in the current regime. Exemption exists by the grace and favour of the Minister. It is essential, however, that academic freedom should be entrenched in well-defined primary legislation and that exception to that right should be specifically established by Parliament.
In these days of mass communication, if something is known in Lapland it can be assumed that it is known in the United Kingdom, Russia, the United States of America or wherever. However, without doubting the Minister's word, it is clearly essential to put academic freedom into words if only to protect against the actions of an over-zealous official at some future time. We are not used in this country to extra-statutory exemptions from the strict wording of an Act of Parliament, nor of a law being interpreted by ministerial ex cathedra pronouncements.
Hitherto, someone in the United Kingdom who made a new scientific discovery or technical innovation had a choice: he could apply for a patent, in which case the Government had the opportunity to suppress it as a sort of state secret, or he could effectively give it to the world simply by publishing it. In the latter case the Government had no power of control. This has been seen by academics as a fundamental freedom. However, it seems that some parts of Whitehall have seen that right to publish and exploit one's work as a loophole that they have to close. That sort of outlook has made it hard, if not impossible, for successive governments to come up with a satisfactory freedom of information Act.
There is no question but that the broad wording of Clauses 2 and 3 imposes prior restraint on academic publication and international co-operation in research. I cannot believe that it is practical to have civil servants review tens of thousands of scientific papers every year to decide whether a licence should be granted under the powers sought in the Bill. For that to be done properly would require funding far beyond the regulatory impact assessment which has already been made. I believe that it is also a major breach of the human rights convention.
What is required, therefore, is an exemption for communications in the ordinary course of academic research and teaching. The Minister points to an exemption in existing controls for basic scientific research. But there are two flaws in that. First, these controls are too important to be left to secondary legislation. Secondly, the phrase "basic scientific research" is too narrowly defined, being limited to exclude work with a practical application.
The Minister justifies the exclusion of the existing exemptions from the Bill and their intended inclusion in secondary legislation on the grounds that the definition of public domain and basic scientific research are derived from international agreements which might be changed. That is the exact point. The purpose of having the exemptions enshrined in the Bill is to make it hard for them to be removed or changed on the whim of a group of international officials. It is far from reassuring that the Minister puts his department's legislative convenience above the importance of what we are talking about—academic freedom.
I ask the Minister to note that I have placed a restriction on the power to publish scientific work for copyright or patent purposes by excluding cases where other legislation permits the Government to impose such a restriction—for example, certain restrictions on obtaining patents or cases governed by the Official Secrets Act. I should like to think that the wide powers under Clauses 1 and 2 to review scientific papers are either an excess of zeal or an oversight by the department and are not due to some bureaucratic motive or something more sinister.
I cannot accept that the fears of academics—I think that I can fairly call them learned and highly intelligent academics—which have been expressed forcefully to me are due to a misinterpretation of the powers that the Government seek. In either case, the amendment in the proposed new subsection (3) would set the matter beyond any doubt.
The other part of the amendment ensures that we are not bogged down by seeking some excessively restrictive interpretation of public domain. I believe that the paragraph restricts the phrase to its ordinary, every day meaning. The Bill must not be used to introduce a restriction into academic teaching or to regulate the dissemination of well-known scientific material, including computer software. There may be a good case for strengthening the protection of patents, copyrights and other intellectual property, especially from piracy via the Internet. But this Bill, which exists for an entirely different purpose, is not the place to police such illegal activities.
I understand that the Government will shortly introduce regulations which will implement the European copyright directive which is the right way to deal with the piracy problem. The first paragraph of the amendment secures the right to publish scientific discovery and the right for academics and others to teach material already in the public domain to British students and the thousands of foreign students who come here. It will also enable British academics to teach abroad without getting prior sanction from Whitehall or having their courses censored by it. While my amendments cover most undergraduate teaching, they do not fully cover research, much of which in these days of high costs and often funding by multinational companies, is itself the subject of international co-operation.
My brief informs me that most of the research students in science and technology at our top universities are foreign nationals. I understand that at Oxford and Cambridge three-quarters of them are from overseas. I shall not become involved in a debate about which are what my brief calls the top universities. But places in our universities, especially in science subjects, are rightly much sought after by foreign graduates in order for them to conduct their advanced studies and postgraduate research in this country. This country, with such a high reputation for academic excellence, will be the poorer if we drive students and tutors away to other countries by threatening them with censorship and even 10 years' imprisonment for publishing their theses.
Another question which arises from this apparent preponderance of foreign science and technology students is whether there are to be licensing controls on which students can study which subjects, and how that would affect students coming from the EU. The late Lord Reid once observed:
"Income tax, if I may be forgiven for saying so, is a tax on income".
This Bill is supposed to be about export controls, that is, the control of exports. Why are the Government trying to impose restrictions on the normal exchange of information in the world of research and academic study? They would not dare to introduce such a concept in a stand-alone Bill.
How do the Government propose to enforce the provisions of the Bill concerning the dissemination of academic information? Are correspondence and scientific papers to be censored? Is there to be eavesdropping on telephones, the Internet and e-mails? What control is there to be over an overseas student when he returns home, disseminating what he has learned here? Does this already control-freak Government propose to regulate the world of teaching, study and research by the introduction of thought police? How else will they discover what is going on? How long do they think that our academics and science graduates will remain in this country and not "export" themselves rather than submit to the regime proposed by the Government? I do not exaggerate.
What degree of control will the Government have, whether or not they choose to exercise it, over international co-operation between our universities and institutions overseas? I draw the Committee's attention to the voluntary vetting scheme under which universities are encouraged to seek guidance from Whitehall before offering research places in sensitive subjects and dual-use technology to foreign nationals. Many universities, including Oxford and Cambridge, have refused to participate in this scheme, presumably on the grounds of its political incorrectness and racial undertones. They suggest that the problem should be resolved via the visa process, but that would not apply to students from the EU and possibly the United States.
The amendment to subsection (4) restores academic freedom for our teaching establishments with the requirement that the freedom does not apply when the institution knows, or common sense should tell it, that a particular subject is not one suitable for general dissemination. After all, one can get information on how to make dirty atomic weapons, nerve gas and even conventional explosive devices from the Internet. Restrictions on our universities will not hinder that in any way. I reject the argument—should the Minister consider trotting it out—that the Bill will bring the United Kingdom into line with European regulations made in 2000 which extend export controls to include intangibles.
The prime mover in pushing those extensions in the first place was the United Kingdom. But the European regulations do not require the United Kingdom to impose regulation on domestic transfer, nor on publication controls or restrictions on information already in the public domain. Indeed, the provision exempting matters in the public domain is plain common sense. To try to restrict that in any way would make the law a complete ass.
I summarise the problems which the Government have created by the proposals. I quote from a paper which appeared in the influential and learned journal, the New Scientist, last month, contributed by Dr Ross Anderson, a computer scientist at Cambridge, and co-founder of the Foundation for Policy Research and by Nicholas Bohm, a member of the Law Society's Electronic Law Committee. They say that the Bill will give the Government a right of prior review of scientific papers and the right to censor them. Those controls will extend to software, e-mails, designs and presentation slides. They could prevent scientists from assessing and replicating colleagues' work and it threatens to undermine the very fabric of the scientific process.
The problem of the so-called "dual use list" is that it covers anything that the MoD thinks is high-tech. I do not accept, and I hope that the Government will not say, that these matters can be dealt with in regulations. I believe that they are of sufficient importance to be dealt with in the body of the Bill, especially in view of the well-known problem of modifying and amending secondary legislation.
"We recommend the incorporation into the Bill of the safeguards for bona fide academic activity set out in the commentary on the draft Bill and in the evidence of the Secretary of State".
Why have the Government rejected the recommendations of that very influential committee? Why have the Government resiled from what the former Secretary of State, Mr Stephen Byers, apparently told the Quadripartite Committee by attempting to take draconian powers in the Bill, which they suggest that they may modify in secondary legislation?
The Minister prepared a riposte to the article in New Scientist, as I mentioned earlier when I referred to my concern, which was unfortunately apparently unable to offer him the space for its publication before today's debate. He has, however, been courteous enough to send me and others a draft and he will no doubt make his own comments shortly. But having consulted with Dr Anderson and Mr Bohm over the weekend, perhaps the kindest way I can describe his riposte to their reasoned complaints and fears is that it contains many red herrings scattered like straws in the wind, if I am permitted to mix metaphors.
At this point I believe that I should mention briefly Amendments Nos. 48E, 48F and 48G to my Amendment No. 48ZA, proposed by the noble Baroness, Lady Sharp of Guildford, and the noble Lord, Lord Redesdale. They certainly have some merit. At a later stage, when my amendment will be reintroduced, we shall together consider the matter and decide how we can incorporate their ideas into my amendment. In the meantime, I am glad that it appears that, on this occasion at least, we are together on this problem.
The Government said that they conceded that a licence should not apply to information in the public domain. However, that is not in the Bill as it ought to be, which is, therefore, why it comprises part of my amendment. I hope that even if the Government will not accept these amendments in their present position in the Bill, and even perhaps in their present form, they will agree to some alternative method of assuaging the fears of the very responsible body which has raised the issue. I beg to move.
In moving Amendment No. 48ZB, I wish to speak also to Amendments Nos. 48ZC and 48ZD. I need not detain the Committee long on this matter. The amendments seek to clarify the situation and to spell out a little further Amendment No. 48ZA. Amendment No. 48ZB is self-explanatory. It is a minor amendment. The word "already" adds a little clarification, but it is purely clarification.
Amendment No. 48ZC picks up the words that the Government used in their commentary on the Bill. As I say, it provides a little further clarification which we believe is useful. It refers to publication in the ordinary course of academic teaching or research, but also enables concerns about certain material to be met. It places the onus specifically on the Secretary of State. I refer to a situation in which an academic knows that the material he or she is publishing contravenes the terms of the schedule; namely, that it concerns weapons of mass destruction or is related to missile production or is specifically prohibited by the Secretary of State.
Amendment No. 48ZD omits the words, "ought to have known" as it seems to me that one either knows or does not know about the matter we are discussing. The words "ought to have known" would lead to much uncertainty and it is, therefore, better for them to be omitted. The insertion of the words,
"has been informed by the Secretary of State", in place of the words, "ought to have known", places the onus on the Secretary of State in terms of transparency. If he or she states that the material should be withdrawn, the matter is out in the open and is transparent.
While I am on my feet I should say how much I sympathise with the case that has been made by the noble Baroness, Lady Miller. It is extremely important that we have on the face of the Bill not just promises as regards secondary legislation but that academic freedom is upheld and recognised. There are dangers as regards censorship being imposed and the Secretary of State having the right to censor academic publications. These days when publication involves not just written material but also software and e-mails, it is extremely difficult to maintain that stance. It is not necessary for the Secretary of State to have these wide, sweeping powers.
The noble Baroness, Lady Miller, mentioned the danger that the Secretary of State is in effect also seeking a power to license foreign research students. There is currently a voluntary agreement with the universities as regards vetting foreign research students entering this country. However, it is implied that that would be made compulsory. Research today is an international and multinational business. Collaboration is the name of the game. One corresponds constantly with other people. One should not need to ask oneself, "Should I stop doing this because there is a danger that I may breach the terms of the export control legislation"? It should be made quite clear that in a limited number of circumstances an academic has a responsibility to consider such matters; that is, when he or she knows that they are breaching the terms of the schedule in relation to weapons of mass destruction or missile technology as regards material which might be of value to enemies of the state. However, apart from those circumstances, or where the Secretary of State explicitly makes a request in relation to certain material, it is most unfortunate and most regressive that the Government are proposing these powers. I beg to move.
I have not so far taken part in the proceedings on the Bill. However, I support what my noble friend Lady Miller said and the spirit of the group of amendments. I refer to my experience on the governing bodies of two universities in Scotland and of the Open University, to which the amendment is particularly applicable. I remind the Committee that this matter does not concern only Oxford and Cambridge, about which we have heard so much, although there is nothing wrong with either Oxford or Cambridge. The freedom of academics to teach, to research and to share the results of their research across the world is absolutely vital to the whole international world of academia and is also vital to this country.
Too often legislation inadvertently becomes part of the law of unintended consequences. I believe that the Bill is probably a case in point of a quite dangerous nature. At various stages the Government have discussed these problems with the universities—with university teachers and vice-chancellor representatives—and I understand that they have moved in certain respects. However, the fact remains that there is nothing on the face of the Bill to ensure that the international dimension of what universities do in the ordinary course of their work is not caught by it.
I am sure that the Minister understands that point; he is in a good position to do so. I hope that the word "resist" is not written across his brief. I look forward to cutting out, framing and hanging somewhere in my house the words he used when he resisted one of the amendments, as I considered that a special example of resistance by a government.
The point at issue here is most important. I hope that the Minister will take it on board. I suspect that the wording of the amendments will have to be a matter for the Government, because this is a complicated business. I hope that the noble Lord will give us an assurance that this protection will be placed on the face of the Bill. It is not good enough for such provision to be covered by secondary legislation; it must be on the face of the Bill. I trust the Minister will tell us that that is his intention.
While speaking in favour of the amendment moved by the noble Baroness, Lady Miller, I must declare an interest as the chief executive of Universities UK. At the outset, I should point out that the purpose of the Bill is one that Universities UK has welcomed since it was first considered in 1998. Universities welcome measures that are designed to bring up to date legislation that dates back to before the Second World War. The existing position is clearly unsatisfactory. But at the same time, we made it clear in our response to the Government's White Paper in 1998—and, indeed, reiterated that point before the Quadripartite Committee in another place—that there is a compelling need to secure academic freedom in the Bill for those who carry out vital, cutting edge research in our higher education institutions.
My point is that we must not throw out the vital baby of academic endeavour with the murky bath water of an insecure world. The Government have certainly moved their position since 1998, and they now accept that there is legitimate concern in this respect. We welcome the fact that the present Bill has gone some way towards addressing the concerns expressed in 1998 about interference with legitimate academic activities, but the academic community is not convinced that the right balance has yet been struck. Therefore, on behalf of university vice-chancellors, I should certainly like to see the legislation amended to indicate a clear commitment to academic freedom on the face of the Bill.
As has already been pointed out, the vice-chancellors are united with their academic staff through the Association of University Teachers in seeking an amendment to the Bill. Many of the criticisms and concerns that have been brought to my attention have already been articulated by the noble Baroness, Lady Miller. However, the wide definitions in the Bill have also caused concern. The phrase "relevant consequences" in the schedule is so wide that a large swathe of science and technology potentially falls within it. I am sure that that would not be the Government's intention.
It is very important to stress that many of the concerns are about potential dangers—many of which the Government have already accepted and plan to deal with in secondary legislation. That is an option that Universities UK has discussed with government officials. Those talks have convinced us that the Government in no way want to impinge upon academic freedom by way of the Bill. But academics would see this incorporation in secondary legislation as being very much a second-best option. Even with secondary legislation, the dangers would seem to remain: they will stay set out in primary legislation that could, in theory, be used by a government some time down the line. So, in my view, secondary legislation would be seen as a weak guarantee of freedom.
Ministers have indicated that one reason for leaving much of the detail to secondary legislation is to allow them to adapt quickly the export control regime to changing international obligations. Obviously, that is a sensibly pragmatic approach. But it is with the same ease that the export control regime could be adapted to meet international obligations that the guarantee of academic freedom could be altered, as it is set out in exactly the same way. It is also difficult to envisage how a guarantee of academic freedom on the face of the legislation could impinge on the UK's international obligations in the future. I hope, therefore, that my noble friend the Minister will enlighten the Committee.
I do not wish to rehearse these points any further. I believe that a debate on such points is vital. The issue has certainly caused an enormous amount of concern in the academic community. I look forward to hearing what guarantees my noble friend can offer that community.
It is not a matter of the good intentions of the Minister, or, indeed, of the clarity of the noble Lord's understanding of such issues: the question is what the law might in future say. When the noble Baroness, Lady Miller, was speaking to her amendment a short while ago, it was clear from the Minister's demeanour that he felt that she was painting an apocalyptic picture that was not justified by any likely outcome. With respect, I say, again, that that is not the issue. The issue is what the law might say.
As drafted at present, the law does not say enough and does not say the right things. That is the point we must address. It is not an issue of secondary legislation; it is an issue of primary legislation. Therefore, we are supportive of the remarks made by the noble Baroness, Lady Miller. Some of the colours in her picture may have been a trifle lurid, but her heart is most assuredly in the right place.
I have one further point to make. It is most important for all of us to understand the reality of the scientific and intellectual exchange that is so vital to the academic community in the United Kingdom, and elsewhere. I declare an interest in that I now find myself chairman of the Chemistry Advisory Board at Cambridge, albeit that, by training, I am an historian.
Only last week, I was talking about this issue to Professor Saunders, who is head of the Chemistry Department at Cambridge and someone whom the Minister knows well. He expressed rather vividly the fact that he had within the past few weeks been involved in the writing of a scientific paper that had to be submitted in its final version within a 24-hour span. He did so on the basis of an hour-by-hour electronic interchange with scientists in Australia and in Europe. That exchange took place at a certain point almost on a minute-by-minute basis. That is the reality of the dynamic of research and the exchange of ideas. The phrase that the professor used was one that struck me powerfully; namely, that without conversations across the world all the time and every day, science simply could not move forward.
I remind the Minister that, as part of Cambridge University, we now have the Centre for Molecular Informatics, about which he is aware. The whole purpose of that centre is to bring to bear the very latest information technology to facilitate the day-by-day and hour-by-hour—sometimes minute by minute—international exchange of data and of ideas. Therefore, my plea to the Minister is that he should understand the basis of the concern. It is not fear about something that someone might do; the basis of the concern is that this reality and importance of scientific exchange should be explicitly recognised in the Bill. It is not a matter for the Minister to deal with at a later stage, and it is not a matter for secondary legislation. It is a matter for the Bill.
In our unqualified commitment to the principles of academic freedom—I take second place to no one in this respect—we must ensure that we do not gloss over some very real issues that my noble friend the Minister has to face when dealing with this legislation. The Bill is about what can happen in the world in terms of suffering, slaughter, and the destruction of democracy; indeed, all the horrors that we have seen too frequently in recent decades. It is not simply in the realm of what are loosely called "weapons of mass destruction", although that needs to be qualified. As we recently saw most clearly, it is in the whole realm of bacteriological and chemical warfare, and so on.
An immense range of very complex issues is involved. We should not gloss over them. However, I should like to join noble Lords on all sides of the Committee who have stressed that, in our concern for that very real issue and the purpose of the Bill, we must remember what it is that we are trying to defend throughout the world; namely, a civilised, decent society of which academic freedom is one of the cornerstones. We must get the balance right. I hope that my noble friend the Minister will be able to reconsider the matter.
I gained the impression that the noble Baroness, Lady Miller of Hendon, will not press the amendment to a vote and that she will go away and think further about it. I have one suggestion for her, which I hope she will find helpful. In the amendment, she refers to the transfer of information,
"orally or in writing or electronically".
I wonder, in any redrafting of amendments, whether it might not be sensible to refer to information transferred "by any means". That would ensure that the Bill could deal with any changes to the systems of information transfer that may be developed. We live in a fast-changing situation. One never knows what will happen next year in the world of information transfer. It would be unfortunate to confine ourselves in an amendment to what is at the moment without taking into account what might be in the future.
I was very relieved to hear the remarks of the noble Lord, Lord Judd. For a moment, I thought that he was going to take a different course. I, too, feel that this is an extremely important amendment. It is strange that this matter was not raised with vigour at an earlier stage and that it did not form an important part of our debate at Second Reading. Some of us were slow to be alerted to the matter. Fortunately, my noble friend Lady Miller was quicker than many of us.
This subject is one on which your Lordships' House has a very fine reputation. The noble Lord, Lord Judd, and others will remember a decade or so ago, when we were new to this House, that the then Conservative government proposed legislation that was felt by many to impinge on academic freedoms. Many of us from all sides of the House spoke out at that time with considerable vigour.
I do not for a moment imagine that the Government are seeking to do something nefarious at this turn. However, they are making the same old mistake that we encountered 10 years ago and subsequently; that is, they are relegating to secondary legislation the tidying up that follows and brings with it all of the dangers in question. I feel very strongly that the Government would be well advised to take these criticisms on board and bring back into primary legislation those safeguards that I am given to understand they have already given informally.
Some of these matters have already been rehearsed and I shall not go through them at length. The House of Commons Quadripartite Committee was told by the then Secretary of State for Trade and Industry that,
"he was sure that the provisions . . . requested could be incorporated into the Bill".
The committee's report said:
"We recommend incorporation into the Bill of the safeguards for bona fide academic activity set out in the commentary on the draft Bill and in evidence from the Secretary of State".
However, the Secretaries of State for Defence, for Foreign and Commonwealth Affairs and for Trade and Industry declined to follow that recommendation of the Quadripartite Committee. They said:
"The Government was pleased at the welcome given by Universities UK to the modifications proposed by the Government to meet concerns of the academic community about the proposals on intangible transfers . . . The Government does not, however, consider that it would be appropriate to incorporate these points in primary legislation".
They went on to refer to the issue of convenience, which has already been raised by the noble Baroness, Lady Warwick of Undercliffe, and others. They said:
"As strategic export controls derive largely from international obligations, the Government believes that it is important that the Bill provides the powers necessary to allow it to adapt its controls".
The Government have never previously had any problem with introducing legislation to adapt controls to new international legislation that is enacted. In fact, most international legislation requires adjustments and consequent legislation in this country. Those are weasel words for administrative convenience.
It is now clear that it is really important to have primary legislation to enshrine the academic safeguards. I shall not go into detail—the case has already been made very well by my noble friend Lady Miller, who was perhaps a shade apocalyptic at times. However, as has already been said, the apocalypse may follow, and we do not always rely on the wisdom of noble Lords opposite to take a wise course because they will not always be in that position.
I strongly urge the Government to take the matter away. The academic world has been slow to wake up to the matter and Universities UK was perhaps rather ready to accept that secondary legislation might do. I have now taken part in many debates in your Lordships' House in which many Peers, from all sides—some academic, some not—wished to defend the very principles that are at risk today. The Government would do well to take the matter away and see what they can introduce in primary legislation, via modest amendments, that will safeguard the principle without bringing them untold administrative inconvenience, which we are not seeking. We do not doubt that they are bona fide, but the noble Lord, Lord Watson, was absolutely right to say that it is important that primary legislation holds tight, although it also has to work subtly and effectively so that the Government can do their business.
No one wishes to exaggerate the threat, but there is a real threat in this regard. Frankly, now that the point has been brought to the surface in this clear manner, it will not be good enough unless the Government think further about it.
The Bill has given rise to very considerable concern among academics involved in advanced science and technology. The e-mails have fairly been humming this week. Those who are particularly concerned are involved in computer science and, especially, cryptography. They fear that the Bill will empower officials to prevent them from communicating their research, from collaborating on advanced projects with other countries, from recruiting research students and even from teaching abroad.
Some of the concerns and suspicions have arisen because of unfortunate interactions—I can think of no other way to put it—between officials in various government departments and the academics who are involved in these advanced areas of technology. Those interactions gave rise to considerable grounds for suspicion. Despite the best expressions from the Minister, an extremely explicit statement in the Bill is required to overcome those concerns. We need virtually a procedural development to ensure that once the Bill is enacted, there will be open discussions and seminars between the officials who will administer the matter and the universities affected. That way, everyone will understand what is involved. There is currently considerable difficulty.
As the Bill stands, it may prevent the placing of certain academic information in the public domain. Members of the Committee may not be aware that the United States has established very draconian powers along the lines that some people fear exist in the Bill. Those powers involve controlling the publication and communication of science. In relation to some scientific projects in the United States, it is obligatory for the academics involved to send copies of all e-mails to certain members of the US Government. We in the United Kingdom have benefited from such restrictions in the United States—some of the affected people have come to this country. Do we want the same situation to occur in relation to this country?
One worrying feature of the Bill is that it may lead to the anonymous application of such control powers. As we have heard, some universities have refused to accede to such an anonymous application of power, whereas other universities have gone along with it. There is a concern that a university may have to decline foreign students and accept that that is the responsibility not of Her Majesty's Government but of the university. The fear of having to be not explicit, as it were, is at the heart of some of the concerns.
I very much hope that any kind of restriction is explicitly in the hands of the Secretary of State—that is a feature of the amendment. It is improper for universities to have to act with subterfuge in terms of turning people away because they may be deemed to be a security risk.
Finally, I believe that the Bill is important. Where there are major risks, the Government must be clear that they are taking responsibility for them and are not using universities in the way I have described. I very much hope that the amendment is agreed to.
I follow my noble friend Lord Hunt and the noble Baroness, Lady Warwick, in expressing my deep disquiet about this aspect of the Bill, which otherwise I am perfectly happy to support. The principle underlying it is the political vetting of research. Academics will be second-guessed by bureaucrats or politicians who will say that their research is or is not "in the national interest".
Unless the Bill is altered, that is how it will remain, and there is nothing more destructive to intellectual freedom and freedom of inquiry. The proposal covers the whole extent of research—so broad is the definition of technology and the work done on it. It covers teaching, research and publication. It is deeply worrying that all those areas will be open and that the proposal will also affect the prospect of people coming here to work on research and the beneficial interchange that flows from that.
I do not believe that it is sufficient to rely on secondary legislation. The 20th century is absolutely riddled with examples, from McCarthyism onwards, where academics have found that all types of unexpected legal obstacles have turned out to be more serious than they were thought to be. I believe that Aneurin Bevan said that one guarantees a freedom by adding another freedom to it. I believe that that is profoundly relevant in this case.
As a member of the Association of University Teachers and an ex-member of what in my day was called the Committee of Vice-Chancellors and Principals—it now has a jazzed-up name—I share the concerns. Three fundamental principles are threatened: the freedoms of inquiry and thought; the freedom of movement of academics abroad and of research students here; and the internationalism of universities. Universities are truly part of a republic of learning that knows no boundaries. They should not be contained by bureaucratic definitions of the "national interest". Therefore, I hope that the Government will alter this provision and that they will specifically write in safeguards which are not there at present; otherwise, at some point in the future we shall be in danger of going the way of totalitarian regimes all over the world.
It was a long time ago, but I apologise to the noble Baroness if any inconvenience was caused by changing round the clauses. I shall look into the matter to ensure that it does not happen again. I believed that, in writing to her about where the New Statesman article was wrong, I had fulfilled my responsibilities. I should perhaps have faxed my letter to her but, as she paid not a blind bit of notice to what was in my careful rebuttal, I do not feel in any way concerned about that.
I shall deal at length with this issue because I believe that a great deal of misinformation has been put out about it. Having suffered for many years from professors telling me to read the question carefully, I suggest to them that they read the legislation carefully and also look at the dummy orders that have been carefully produced to cover this point.
I should point out that I am not only the Minister with responsibility for taking the Bill through this House; I am also the Minister with responsibility for science and innovation. I have spent almost the past four years saying how important it is that we have international contacts for science. I am proud of the fact that in this country we carry out 4.5 per cent of all the world's science. That means that 95 per cent of the science in the world is carried out by other countries. If we are to remain a world-class scientific nation, we must have constant and frequent contact with those other scientists.
Equally, I believe that there is nothing in the Bill and in the legislation that we are producing that in any way prevents that from happening. I agree with the noble Lord, Lord Watson, that it is not a question of what my or the Government's intentions might be; it is a matter of what the Bill and the secondary legislation says and a question of what other legislation exists to prevent the secondary legislation being altered in a way that would make it difficult for scientists.
Amendment No. 48ZA seeks to place on the face of the Bill an exclusion from control of any information which is in the public domain or is placed in the public domain. It also seeks to exclude information transferred during the course of academic teaching or research unless the person transferring the information knows that that could have been one of the consequences listed in the schedule to the Bill. Amendments Nos. 48ZB, 48ZC and 48ZD would modify the amendment to allow the Secretary of State to prevent information being placed in the public domain by informing a person that publication of data would have a relevant consequence as defined in the schedule.
We have made clear that exemptions for information which is in or is being put into the public domain will apply to the new controls on intangible transfers to be introduced under the Bill. That means that if one publishes a scientific paper or refers to information already in the public domain, it is not in any way controlled under the Bill. There will also be exemptions for basic scientific research where the equivalent export in physical form would be exempt.
However, perhaps I may explain why it is extremely difficult to include such exemptions in primary legislation, as the new clause seeks to do. Strategic export controls derive largely from international obligations. The Bill must provide the Government with the powers to implement those international obligations and to adapt their controls to reflect any changes in our international obligations in the future. For example, under the new controls the planned exemption for information in the public domain will be based on the exemption currently contained in the European Community Dual-Use Items Regulation.
That regulation, in turn, uses a concept of "public domain" derived from the international export control regimes, including, for example, the Wassenaar arrangement. That agreement is signed up to by 33 countries, including the United States and most of the major industrial countries in the world. The definition of "public domain" is kept under review by the international regimes, and the Government consider it crucial to be able to keep our own national legislation in line with the international concept and definitions used. The proposed new clause would mean that any changes to definitions used by the international regimes could be incorporated into UK law only by means of new primary legislation, making it impossible for the Government to respond to and implement international commitments promptly.
Moreover, under European Community legislation there already exists a specific control on the export or transfer by electronic means of information in the public domain. The European Community regulation to which I referred, which has been in force in the UK since September 2000, together with the UK's Dual-Use (Export Control) Regulations, imposes controls on the transfer of technology by physical or electronic means where the provider knows, is informed by government or has grounds for suspecting that the technology or software is or may be intended for use in connection with weapons of mass destruction or related missile programmes.
No exemptions apply in respect of this end-use control. That is because the view of all members of the European Community is that knowingly to send to a weapons of mass destruction proliferator even a published book or journal which could contribute in some way to that weapons programme would be wrong. The proposed new clause would prevent the Government from continuing to implement that control in full.
I hope that all Members of the Committee will agree that to have an export control Bill which did not enable us to prevent information knowingly being given to people who wished to create weapons of mass destruction would be an absurdity. That we should spend our time in this Chamber debating whether we can control the movement of firearms from one part of the world to another—none of them in Britain—and at the same time—
I am grateful to the noble Lord for giving way. I believe that all Members of the Committee who have spoken agree that it is necessary to prevent the creation of weapons of mass destruction and to prevent the communication of weapons relating to mass destruction. It is hoped that the Government will produce an amendment which will indicate specifically that they would be able to intervene when a fear or suspicion that information relating to weapons of mass destruction was involved. That point would be accepted on all sides of the Committee, and I am sure that the noble Lord need not labour it.
I raised the matter only because that is the one point introduced by the Bill and its associated secondary legislation where we are operating that type of control. I consider it necessary to make that point having listened to the apocalyptic remarks made in this Chamber about controlling every paper produced by scientists and preventing communications between scientists of every country. It is worth making the point that the Bill controls simply the oral communication of information which is not in the public domain and which would lead to the use of weapons of mass destruction. I believe that that is sensible and important. I make the point that that is what the Bill controls. I turn to the other question, which is possibly—
No, I believe that it is sensible. In the real and practical world, if we are faced with a situation in which we know that a person in this country, a scientist or whoever, is giving information, and knowingly wants to give information, to another country which would help it to make a weapon of mass destruction, which presumably it cannot do—it is still the case that not every country can do that—we should have the power to control that. The fact that in an American university there are probably lots of people who can do that is neither here nor there, compared to the situation with which a Minister could be faced and on which he would need to take practical action.
There is an issue to be debated which has rightly been debated. I refer to the role of secondary legislation as opposed to such provisions being on the face of the Bill. Concern has been expressed that without exemptions in primary legislation the powers in Clause 2 could be abused by a future government. I can assure the House that the freedom of any future government to remove exemptions for information in the public domain from secondary legislation to be made under the Bill is severely constrained. Any future government wishing to alter secondary legislation would have to comply with the Human Rights Act, which protects freedom of expression.
As regards the provisions in the Bill, I have already given a statement under Section 19(1) of the Human Rights Act to the effect that in my view the provisions in the Bill are compatible with the convention rights. Those convention rights include the following:
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers".
Publication of scientific papers would be included within that right of freedom of expression. Any order made under the Bill which was not compatible with those rights would be liable to successful challenge in the courts. I make that point because if we put a provision on the face of the Bill, it would be simply an expression of similar rights within the Human Rights Act.
A further protection is provided by the fact that by virtue of introduction of the European Community's dual-use regulation, controls on exports of dual-use goods and technology are a matter of Community competence. The UK Government do not have the right to alter European controls introduced in this area. Any order attempting to modify or remove the exemptions in this regulation for technology or software "in the public domain" or for "basic scientific research" would again be liable to successful challenge in the courts.
Finally, I point out that the Bill limits the controls that could be introduced under Clause 2 to military technology and controls on transfers that might risk certain effects including contributing to weapons of mass destruction or human rights abuses. Only a limited proportion of academic research would have the potential to cause harm of that nature. By contrast, the export control powers which the Bill will replace, and which already allow controls on physical exports of technology, have no such limitations.
I turn to the controls that the Government propose to introduce under the Bill, which are set out clearly in the dummy draft orders published last autumn. Both the Bill and the proposals for secondary legislation have been welcomed in broad terms by Universities UK. While that organisation would like to see a direct reference to the protection of routine academic activity in the text of the Bill, it accepts that the option of guaranteeing academic freedom in secondary legislation is nevertheless helpful. However, it asks that that be backed up by a statement in the House about how the Government intend to protect academic freedom in that way. I believe that that has been the view expressed to us by Universities UK. From what the noble Baroness said earlier, it seems that it is now going rather further than that. However, I shall respond to the position which it put forward and say that I can now give it the statement it wants about how the Government intend to protect academic freedom.
I make clear that the Government intend to control the transfer of technology abroad by electronic means such as fax and e-mail in exactly the same way as we currently control the export of hard copy communications. That means that the same exemptions which now apply to exports of hard copies will apply to transfer by electronic means. There are already exemptions, both for information in the public domain—that includes information already in the public domain and information that is being put into the public domain by the transaction in question—and for basic scientific research.
As regards controls on communications in person, I make clear that there is no question of the Government licensing foreign students. I also make clear, for those who have not read the Bill, that the Bill does not give us the powers to do that. The only control we intend to introduce on communications in person is where a provider of information knows or has been informed by government that such information, if communicated to a particular person or persons, is or may be intended for use in connection with a weapons of mass destruction programme or missiles capable of their delivery. Even here, there will be an exemption for information in the public domain. We believe that most scientists would, in any case, wish to avoid their work contributing to such programmes. I hope that what I have said for the record today will reassure both the Committee and the academic community. Perhaps I may provide further reassurance by reminding the Committee that we shall be holding a full public consultation on the draft orders to be made under the Bill which will give all, including the academic community, a further opportunity to comment on the details of the proposed new controls.
In view of my explanation of why we cannot place exemptions on the face of the Bill, the fact that the amendments would achieve little which is not achieved by the Human Rights Act, the legal protections already in place against future abuse of the powers in the Bill, and finally the assurances I have given about the way in which the Government propose to use the powers in Clause 2, I invite the noble Baroness to withdraw her amendment.
Before the Minister sits down, I understood him to say that to put the defence of academic freedom on the face of the Bill would simply reiterate the Human Rights Act. If that is so, it must also be the case that it would be repeated in secondary legislation. Does he not realise that for all the discussions he might have with and agreement he might get from academics, this Chamber wants to approve the wording and, if necessary, amend it? We cannot amend secondary legislation. It would be a different matter to put such provisions into secondary legislation. I think he must realise that.
My noble friend mentioned that we have debated the subject before. I remember my late noble friend Lord Beloff making a magnificent speech about what academic freedom meant. His definitions mattered very much indeed. I believe that this Chamber exists for that purpose; that is, to ensure that the wording in which freedom is expressed should be satisfactory to Parliament, not just to academics, who might not get the full agreement of the noble Lord and find that they had lost out in their discussions. I believe the Minister should understand that. I do not see any reason why the provision should not be on the face of the Bill. There may have to be other provisions in secondary legislation, but this provision should be placed on the face of the Bill. When we come to debate the matter again, if the noble Lord cannot help us in this matter I hope that we shall make the Government do that.
To be absolutely clear about this issue, we have a Human Rights Act. It has very clear rights for people. It was no doubt drafted with great care to cover the point of freedom of expression. The point that I was making was that if one put something on the face of the Bill, it would have to be expressed in largely similar terms. They would not add great value to the Bill, given that one has the human rights legislation which prevents people altering the secondary legislation in an unsatisfactory way. That is the point I was trying to make. I think that it is a valid one to make in this case.
Before the Minister sits down, perhaps I may ask a question. The noble Lord has just commented very helpfully about the question of the control of foreign students coming here and the fact that under the Bill any controls will be, as it were, explicit and there will be a proper arrangement. Is he saying that there will be some change as a result of the Bill from the present practice? The present practice, as has been explained, is not deemed satisfactory at all.
Here there is a voluntary scheme. The nature of voluntary schemes is that they require no legal battle. I ask the noble Lord to read the legislation because he will not find in it anything which gives us the power to license foreign students. It is simply not in the Bill. I can only ask him to point it out to me, as my tutor used to say at Cambridge, and I will pay attention to it. But it is not there in the legislation.
My Lords, I thank very much all noble Lords who have supported me in relation to this new clause. My noble friends Lady Carnegy and Lord Renfrew, the noble Baronesses, Lady Sharp and Lady Warwick, the noble Lords, Lord Watson, Lord Judd, Lord Hunt and Lord Morgan. I apologise if I have left anyone out.
I have taken on board what the noble Lord, Lord Judd, said. I have listened with great interest, but, as he can imagine, with some disappointment to what the Minister said. First, just on a light note, the fact that he thought that I did not read his memo is incorrect. It was as a result of reading his memo that I got in touch with Dr Anderson in America. I spoke to him. I followed the matter up and went to a great deal of trouble to make sure that we understood absolutely—
It was the reference to it being "red herrings blowing in the wind" that made me think that maybe the noble Baroness had not realised the full importance of the matter.
The noble Lord should know me by now. When I do not find merit in what is said, I try to put an amusing aside to it rather than pull it to pieces in a very serious way.
The Minister started by suggesting that the people who had briefed me had clearly misunderstood or misinterpreted what the Bill said. During my speech—I apologise for taking a long time, but on such an important amendment I wanted to set out all the arguments given to me—I actually said that these were the fears of highly intelligent academics and that I could not believe that they had so misinterpreted things. Indeed, listening to noble Lords from all sides of the House, I believe that they understood all too well. I am very well aware that the noble Lord, Lord Sainsbury, is the science Minister. I intend to go away and read very carefully what he said. But I believe that he should go away and read very carefully, not only what I have said, but what every other noble Lord from all sides of the House has said.
One of the Minister's points—he repeated it again—more or less suggested that it was for legislative convenience that the provision came into secondary legislation rather than on the face of the Bill. Otherwise, when new things happened internationally one would have a difficulty and it could not be implemented immediately and so on. There must be a way that this can be on the face of the Bill. It should not be in secondary legislation, which, as my noble friend pointed out, we can neither amend nor have real control over. That just will not do for an issue such as this.
I suspect that it was a mistake on the part of the noble Lord, Lord Watson, to say that I was somewhat apocalyptic, which I think was copied by my noble friend Lord Renfrew, only because it gave the Minister the opportunity to suggest that I had over-exaggerated when what I was talking about is a very serious matter.
I should like to echo the words of the noble Baroness, Lady Miller. We have heard the weasel words of the Minister on this matter. We shall go away, read and look hard at them. I shall also consult my noble friend Lord Lester of Herne Hill about the issues on the human rights legislation and whether or not this is really redundant and otiose as a result of that legislation. I personally at the moment do not feel convinced by the words of the Minister. I nevertheless beg leave to withdraw my amendment.
moved Amendment No. 48A:
Before Clause 7, insert the following new clause—
(1) This section applies to licensing powers and other functions conferred by a control order on any person in connection with controls imposed under this Act.
(2) The Secretary of State may give guidance about any matter relating to the exercise of any licensing power or other function to which this section applies.
(3) But the Secretary of State must give guidance about the general principles to be followed when exercising licensing powers to which this section applies.
(4) The guidance required by subsection (3) must include guidance about the consideration (if any) to be given, when exercising such powers, to—
(a) issues relating to sustainable development; and
(b) issues relating to any possible consequences of the activity being controlled that are of a kind mentioned in the Table in paragraph 7 of the Schedule; but this subsection does not restrict the matters which may be addressed in guidance.
(5) Any person exercising a licensing power or other function to which this section applies shall have regard to any guidance which relates to that power or other function.
(6) A copy of any guidance shall be laid before Parliament and published in such manner as the Secretary of State may think fit.
(7) In this section "guidance" means guidance stating that it is given under this section.
(8) The consolidated criteria relating to export licensing decisions announced to Parliament by the Secretary of State on 26th October 2000 shall (until withdrawn or varied under this section) be treated as guidance which—
(a) is given and published under this section; and
(b) fulfils the duty imposed by subsection (3) in respect of any export controls and transfer controls which may be imposed in relation to goods or technology of a description falling within paragraph 1 or 2 of the Schedule."
When the Government tabled this new clause and other amendments last month, we also provided your Lordships and other interested parties with a note which explained in detail the purpose and effect of these amendments. I hope that the note proved helpful to those who have taken an interest in this important subject. As it explained, we believe that the revision of former Clauses 7 and 8, which this new clause represents, will both clarify and improve the Bill.
As noble Lords will be aware, former Clauses 7 and 8 governed the operation of the export licensing process and enabled the Government to publish guidance about the matters to which regard might be had when taking export licensing decisions, and the reasons which might be regarded as justifying particular export licensing decisions. This new clause has a similar function, but we have made two significant changes in response to the views expressed at Second Reading in this House and more widely.
Although I am in no doubt that under the Bill as currently drafted it would be possible for the Government to reject an export licence application—for example, for an export of arms, solely on sustainable development grounds—I am very much aware of the depth of concern on this issue. In particular, I am aware that noble Lords, Members of another place and outside organisations and members of the public have been worried that a government in the future might seek to exclude consideration of relevant sustainable development issues from the export licensing process.
Through this new clause we aim to address those concerns, strengthening the role played by guidance under the Bill and putting beyond all doubt the Government's continuing commitment to sustainable development, and all the other relevant consequences listed in the schedule, in the licensing process. This new clause is the correct place to make the change as it would govern the licence decision-making process.
As noble Lords will be aware, the Government announced to Parliament on 26th October 2000 that henceforward they intended to assess all export licence applications against a consolidated set of export licensing criteria. It has always been the Government's intention that the important role currently played by the consolidated criteria should continue after the Bill becomes law, which was why the current Clause 8 contains a reference to the consolidated criteria. Noble Lords will see that a similar reference has been carried forward to the new clause. However, we have now significantly strengthened the role played by the criteria under the Bill by making it a requirement for the Secretary of State to issue guidance about the general principles to be followed when exercising licensing powers and by stating that the consolidated criteria constitute such guidance on general principles. Moreover, this change will also ensure that if any government in the future want to change the general principles on which the export control regime operates, they would be obliged to issue guidance stating what the new principles are and lay this guidance before Parliament.
As I have said, it is also the Government's aim, through this new clause, to put beyond all doubt our continuing commitment to sustainable development, and all the other relevant consequences listed in the schedule, in the licensing process.
First, we propose to put an explicit reference in this new clause and thus on the face of the Bill to "sustainable development". That the Bill now includes the words "sustainable development" is certainly of symbolic significance. However, the fact that we have actively decided to amend the Bill to state that future Secretaries of State must give guidance about the consideration, if any, to be given when exercising licensing powers to issues relating to sustainable development must put beyond all doubt the continuing commitment we have to this issue.
We have also made plain in the new clause that when Secretaries of State issue guidance about the general principles to be followed when exercising licensing powers, the guidance must include guidance about the consideration, if any, to be given to sustainable development and issues listed in the table in the schedule. That change makes it totally clear that in issuing guidance on the exercise of licensing powers, sustainable development is entirely equal with the consequences listed in the schedule table. That change also maintains an indirect link between the relevant consequences set out in the schedule and the licensing process. As I said, we have been concerned to end the confusion that has arisen to date about the differing roles of the schedule and of former Clauses 7 and 8. To that end, and because it was no longer necessary, we have done away with the direct link between the schedule and the matters to be taken into account in licensing decisions currently in Clause 7. However, we are aware of concern that were there to be no link at all between the relevant consequences in the schedule and the matters that must be taken into account in the licensing process, that might make it easier for a future government to avoid addressing those important issues. That is why we have ensured that an indirect link remains in the new clause.
Taken together with the change that I described, which will make it a requirement for the Government to issue guidance, that change will ensure that all future governments are required to issue guidance on how they propose to consider sustainable development and all the relevant consequences listed in the schedule when exercising their licensing powers. The only way to change that would be by primary legislation.
I add that were a future government to decide that they did not intend to give consideration to sustainable development—or, indeed, any other issue contained in the schedule table—in arms export decisions, they would have to revise and then publish new guidance. They could not do so in secret and would have to be able to justify such a decision. Without such justification, a decision of that nature would be open to challenge in the courts.
In view of that explanation, I hope that noble Lords will agree that the Government have taken great care to address the concerns raised by Members of this House and by others elsewhere on that important issue and will feel able to support the amendment. However, I understand that the noble Lord, Lord Razzall, feels that changes to the new clause might be beneficial and I look forward to hearing why he believes that Amendments Nos. 48B and 48C are necessary. I beg to move.
I rise to speak to this amendment in my name and in that of my noble friend Lord Razzall and the right reverend Prelate the Bishop of Lichfield. I should like to start by saying how much we welcome the new government amendment to which the noble Lord, Lord Sainsbury of Turville, has just spoken. We are obviously deeply concerned about the amendment's aim, which is to include the words "sustainable development" in the Bill. To achieve that end, the Bill has been significantly rewritten. That has largely addressed our concern about the deficiency of the Bill as drafted.
However, Amendment No. 48B is an attempt to address two areas. It would change the wording "consideration" to "have regard to" and leave out the expression "if any". We raised both of those issues at a meeting before the government amendment was tabled and we had hoped that those two small details would have been changed. The reason that we want to insert the expression "have regard to" instead of "consideration" is that in legal definition it would carry more weight. We have taken legal advice on that and were told that a statutory duty to "have regard to" a matter requires the decision-maker subject to the duty to take something into account and pay careful attention to it. By contrast, a statutory provision that guidance is to be issued on the "consideration to be given" to a matter requires only that the guidance addresses the issue. That may seem to be a matter of semantics, but we believe that the greater weight that would be given by "have regard to" would be more beneficial than the lesser term "consideration".
The second issue, about which we are more concerned, is the inclusion in brackets of the expression "if any". The Minister said that there may be areas in which sustainability may not come into consideration. However, that is not a reason to include the words "if any". If the Secretary of State believed that the issue of sustainability did not have the weight that other issues should have, he could just say so. It would be up to him in his deliberations to say what weight he gave to the sustainability criterion in granting any export licence.
To add the expression "if any" would be to create a loophole. I am certain that the Department of Trade and Industry has no intention of creating a loophole. However, the provision must be worded in such a way that no loophole is available. We therefore hope that the Minister will consider leaving out the expression "if any". We on these Benches and many other Members of your Lordships' House will be keen to return to the matter later and press it, if necessary. I beg to move.
Several of us on this Bench strongly support the amendment. We do not believe that it is simply a matter of semantics. The government amendment undoubtedly strengthens the status of sustainable development in the Bill and goes some way towards addressing concerns raised on Second Reading in January. However, we remain concerned that the weak language in the revised clause on guidance could still allow a future government to disregard issues relating to sustainable development. Ensuring that the Export Control Bill prevents irresponsible arms sales wasting the resources of poor countries is a central concern not only of churches but of other faith communities.
It is one thing when a government that defend their population according to international law purchase military equipment. It is quite another when British companies persuade governments to spend large sums on equipment that is beyond their needs and means. Speaking from the perspective of my diocese, we are closely linked with a new black South African diocese. There are worries there about the proposed sale to South Africa of Hawk fighter jets. Not only are there outstanding questions about the strategic viability of the South African arms procurement programme, there remain concerns about whether that is a true priority for South Africa's taxpayers. At present, figures in the 1997 World Bank development report are hopeful, with defence accounting for a smaller proportion of gross national product than education or health quotas.
However, that picture could change when the implications of the procurement deal are fully realised. The Guardian reported on 7th January 2002 that South Africa is now looking to pull out of its £3 billion arms deal with the United Kingdom and other countries because of the collapse of the rand. The country is also ravaged by HIV-AIDS. Life expectancy falls well below the world average. That clearly underlines the importance of the need to ensure that the Bill provides that weapons that could hamper sustainable development are not exported.
It so happens that I have just returned from a visit to South Africa. The issue of sustainable development is very important, especially with regard to roads. In recent weeks, I have travelled hundreds of kilometres with the African bishop of the new diocese. Too many adults and children are killed on South African roads because of the state that those roads are in. There are potholes, blind bends and few warnings of danger spots. New roads are expensive, but they are a vital aspect of the sustainable development that we want to promote at all costs.
Apropos sustainable development, I must also mention the urgent progress needed in South Africa on wider healthcare issues. I visited a paraplegic centre in a black township just two weeks ago. Young—even tiny—children there were not only paralysed, they were unwell with other complaints, while housed in a derelict, abandoned, disused heavy vehicle hangar. It was cold and draughty, and there were only four girls in their late teens to care for the children. Those are the priorities that we should follow.
The Government have substantially rewritten the clause on guidance—Clause 8—in part to respond to claims that the Bill did not give due weight to the implications of exports for sustainable development. I welcome the Government's more explicit reference to that in the section on guidance, but I wonder whether it would have been easier if the Government had made sustainable development one of the relevant consequences in the schedule, as the original amendment set out to do. That would have given a clearer signal that development was regarded with the same seriousness as the other factors included in the consolidated criteria.
I also find it disappointing that such wholesale changes have been tabled at the eleventh hour at the Committee stage in this House, when there has been a Green Paper, a White Paper, a draft Bill and two public consultations in which no such change was proposed. Despite the improvement, subsection (4) does not deal with all concerns regarding sustainable development. In fact, it raises additional difficulties. In the existing language of Clause 7, the Secretary of State must have regard to the potential consequences mentioned in the schedule, as noble Lords on the Liberal Democrat Benches have said. Under the proposed government amendment, the Secretary of State need only issue guidance about "the consideration (if any)" to be given. Our amendment would retain the original stronger language and is designed to ensure that the guidance must,
"state that regard shall be had" when making licensing decisions to issues of sustainable development and other consequences mentioned in the schedule, such as human rights and regional stability.
Although the two phrases are close in meaning, "to have regard to" is stronger than "to give consideration to". The worry, as the noble Lord, Lord Redesdale, said, is that the Secretary of State could choose to issue guidance that instructed the persons exercising licensing powers and functions to disregard the consequences referred to in the schedule. Unless the Government have a persuasive argument as to why a weakening is now necessary, any change should be resisted.
The government amendment contains a further loophole, by including the caveat already mentioned—"if any"—in subsection (4). That would mean that the Secretary of State could simply ignore issues such as human rights and sustainable development when issuing guidance on export licensing. The Government have explained the inclusion of the phrase "if any" as being intended to ensure that, where, for example, it was not relevant to a particular case to consider issues relating to sustainable development, the guidance could allow for that. They gave the example of the possible need to control exports of diseased cows, but it is not clear, in that case, why consideration of the impact that such exports might have on sustainable development and of the likelihood that it would have any of the consequences listed in the schedule could not be included thereby in the decision-making process.
The amendment is not about whether we support sustainable development: of course, we do. The challenge is to devise a system that provides adequate safeguards to ensure that development is not marginalised within the decision-making process. The example of South Africa suggests that that is all too easily the case. The amendment would tackle the problem and go some way to ensuring that we have an export control policy that is ethically responsible, transparent and publicly accountable. If we do not achieve that today, we may be ducking the political and—dare I say it—the moral challenge before us.
I support the amendment proposed so well by the right reverend Prelate the Bishop of Lichfield and by the Liberal Party. Nevertheless, I thank the Minister and the Department of Trade and Industry for recognising the strength of public feeling on the issue and specifically including sustainable development in the guidance, albeit in somewhat obscure language.
The reference, however, still falls short of what is required. I remind the Committee of the continuing public concern about the need for proper transparency and accountability during the licensing process, much of it focusing on the contrast between spending on arms exports and development aid in the same national budget, as the right reverend Prelate said. We have already discussed Tanzania and the Middle East, but I should like to mention India and Pakistan.
The new clause, as amended, reinforces consideration of each case against the existing EU and national criteria. The Government have already confirmed that all export licence applications are considered case by case against the consolidated EU and national arms export licensing criteria. For example, under sustainable development, which is criterion 8 of the EU code, the current application from BAe Systems to sell 60 Hawk fighters to the Indian Government for £1 billion is assessed not only against the UK economy but against the relationship between defence and social spending in the Indian budget.
Only a few days ago, just after the Foreign Secretary was in Delhi, promoting that sale, the Indian Finance Minister announced a 4.8 per cent increase in defence spending to 13.8 billion dollars. I am informed by Saferworld that, in the past two years and in the budget for next year, India's expenditure on defence amounts to an average of 15.5 per cent of the total budget, while health remains at 0.61 per cent and education at 2.33 per cent. Aid from all sources must also be taken into account under the criterion, and it is relevant that India is the largest recipient of UK bilateral aid, now over £100 million annually.
This is not the time to quote the criteria in full, but all those factors must already be taken into account by member states. Two other EU criteria will be relevant to the case of India: internal conflict and regional stability, both of which raise questions about Kashmir and the latest communal violence. I must also briefly mention Pakistan. Equipment licensed for export to Pakistan in the last annual report included components for combat helicopters and military communications equipment. The United Kingdom has taken a growing defence interest in Pakistan since September 11th. Yet its adult literacy is well below 50 per cent and defence spending is 60 per cent higher than health and education spending combined.
It is a relief that subsection (4)(a) of the new clause ensures that the guidance will now be strengthened. Sustainable development is explicitly referred to in the Bill. As the DTI note states rather quaintly, these issues, once on the statute book, can no longer be ignored by a future government.
Several noble Lords have already spoken about the need to strengthen even further the precise wording of the clause. I support those suggestions. For example, "regard shall be had" is a much stronger phrase than, "giving consideration (if any)". The words "if any" are almost offensive in this context. It would have been better to have included sustainable development as one of the relevant consequences of the schedule, a point made by the right reverend Prelate. As is the case in Amendment No. 79, that would bring it in line with other agreed major criteria. I still cannot understand why the Government have not done this. Perhaps the Minister can help us on that point.
I repeat, the Government have moved some way to meet the points made on Second Reading and subsequently.
In rising to join the right reverend Prelate in supporting my noble friend's Amendment No. 48B, I should also like to speak to Amendments Nos. 48C and 51, which have been included in this grouping. In the light of what the Minister said in his opening remarks, it is now for those of us on this side to indicate why, notwithstanding the significant movement made by the Government in response to representations from, in particular, the NGOs, the Churches and the Liberal Democrats, we are not yet satisfied with the government amendment that has been brought forward.
I shall give two reasons which have been encapsulated by Amendment No. 48B, as well as by the two amendments to which I now speak. First, significant concern has been expressed on all sides of the Committee that the overly weak language used in the government amendment could still allow a future government to disregard issues relating to sustainable development, human rights and regional stability in decisions on arms exports. Perhaps that sounds too cynical—I am sure that the Minister would regard it as such—but I should point out that we have been here before. Noble Lords would do well to remember why we are here debating the Export Control Bill at all.
Any student of the Scott report which, following extensive consultation, formed the origin of the Bill before us, will remember that a major debate surrounding that report concerned the interpretation of "guidelines" on the sale of arms to certain regions. One of the central charges made by the then Sir Richard Scott was that the policy was changed in 1998 so that the text of guidelines that had originally been published in 1985 was altered, but Parliament had not been informed of that change. Thus the context in which Members on both sides of the Committee are seeking extensive clarity of language to satisfy us on this point lies in that history.
I know that that was not the Labour Government and I know that governments always believe they are better than the one before. Undoubtedly they believe that they are going to be better than the one that eventually succeeds them. Nevertheless, I am sure the Minister will accept that, on this particular issue with its particular history, the traditional role of your Lordships' House to make absolutely certain that the framework is correct is the proper role for this Chamber. I cannot believe that there is a Bill whose history could justify that more than does this Bill.
First, on Amendment No. 48B moved by my noble friend, there is concern about whether the Bill should include the words,
"state that regard shall be had" rather than "consideration (if any)", and I mention in particular the use of the words "if any". While I appreciate that this is a drafting point and that the Minister will have been advised by his parliamentary counsel that we are wrong, I should say that we want to be absolutely certain that we are wrong before we concede the point. Again, I refer to the historical context of the matter.
Secondly, I turn to Amendment No. 48C which requires any guidance to be brought before Parliament within 28 days. I am sure that the Minister will respond by saying that the proposal is unnecessary, but again I refer him back to the history of this matter. Guidelines were never laid before Parliament, policy was changed and no one ever knew about it. We are particularly concerned that a timetable should be put in place.
I turn to Amendment No. 51, and note that the noble Baroness, Lady Miller, has also tabled amendments to this part of the Bill. Under the structure being proposed by the Government, the only control we shall have over any changes made to the guidelines, in particular changes to guidance in so far as they might relate to sustainable development, will be if the changes are brought before both Houses of Parliament. While our amendment is only a probing amendment—there have been so many alterations to the Bill that it may well be that the language now requires improvement—it seeks to separate the less consequential changes to procedures from the fundamental changes. We may not have it quite right in the amendment, but we do feel that these procedures must be correct by the time that the Bill reaches the statute book.
The only mechanism under which Parliament can control the extremely important subject of sustainable development, which has engaged debate in this House over the past two to three months, is through these provisions. For that reason, I hope that when the Minister comes to respond, he will be able to give an explanation of why he feels that the amendments are inadequate so that, if he is not prepared to do so, we shall be able to improve them when they are brought back on Report.
I warmly welcome government Amendment No. 48A. I recognise that it is a real attempt to meet the very serious criticisms that were levied against the Bill both on Second Reading and in the earlier part of the Committee stage. However, having said that, I believe that Amendments Nos. 48B and 48C are necessary. I agree that we need to get rid of the words, "if any", and that the words "regard shall be had" are a great improvement on "consideration ... to be given". I should like to point out that in line 30 on page 5 of the Bill as introduced, it stated "have regard", but that it was, I admit, permissive. So this is an improvement.
On the matter of seeing any guidance within 28 days, I agree entirely with what was said by the noble Lord, Lord Razzall. I hope that the Government will take both of the amendments in the spirit in which they are intended.
I believe that the noble Lords who have brought forward these amendments deserve our congratulations. This is one of the most important issues that we shall be considering in Committee.
Although I promise not to keep repeating it, perhaps I should remind the Committee that I am the honorary Senior Fellow of Saferworld. As an independent think-tank, Saferworld has been deeply involved in the analysis of this issue and I have been very much a part of that analysis. Therefore, I feel strongly about it.
At the outset of my remarks, I should like to make the point that in these kinds of situations, we have to be careful to ensure that the victory we seek in the course of our deliberations is not ultimately a pyrrhic one, in the sense that we may achieve the words, but the way in which we get those words has no muscle or substance behind it and indeed might be described by some as a situation almost worse than it was before.
Thus, at the outset, I should like to make the strategic point that this Bill is very good thing and I believe that my noble friend on the Front Bench deserves all possible support in what he is trying to achieve with it. I do not have a shred of doubt that everything he seeks to achieve is very much in harmony with that which all other Members of the Committee seek to achieve. Therefore, I am speaking to him, if I may use the phrase colloquially, as a friend and I am asking him to take some of our anxieties into account.
The Government propose to delete Clause 7 from the Bill. Whatever our concerns about the absence of the words "sustainable development", some of us feel that Clause 7 is very important. As the right reverend Prelate the Bishop of Lichfield properly said, the issue is not only about semantics. Legal advice has been taken in reputable quarters and it would be sensible to state that advice. It is quite uncompromising. The current Clause 7 lays down a specific, unqualified duty to have regard to specified matters, whereas the amended Clause 8 simply provides for a duty to issue guidance that will describe what consideration is to be given to those matters. At the very least that is unfortunate, if not retrograde.
The language in Amendment No. 48A is weaker than the language it seeks to replace in Clause 7. Under the existing language of the Bill, in Clause 7, the Secretary of State has to have regard to the potential consequences mentioned in the schedule. Under the proposed government amendment, the Secretary of State has only to issue guidance about the consideration, if any, to be given. While it might be tempting to regard these two phrases as close in meaning, the legal advice is that "to have regard to" something is a stronger duty than a duty "to give consideration to" something. That is why Amendment No. 48B is so important.
As has been said, the most worrying weakness in government Amendment No. 48A is the inclusion of the words "if any". The inclusion of this caveat would mean that the Secretary of State could simply ignore issues such as human rights and sustainable development when issuing guidance on export licensing. Again, the legal advice I have seen is that by including the words "if any" in the clause it is arguable that a Secretary of State who was minded so to do would be entitled to issue guidance stating that no consideration is to be given to any of the issues set out in the clause.
The DTI has argued that it needs to include the phrase "if any" in order to provide flexibility in cases of controlling exports where issues relating to sustainable development are not relevant. It gave—it is a serious point—the example of the possible need to control exports of diseased cows, and yet it is quite possible to have this flexibility and still remove these two words and hence the loophole. Once again, the legal advice I have seen is that the Secretary of State can determine the weight to be placed on such issues and may confirm that in certain kinds of cases such issues are not relevant or may be of little consideration.
Clearly, if a Secretary of State was weighing-up exports of diseased cows, he would decide that there was no concern on the grounds of sustainable development. The Government already have a power of discretion; inserting "if any" in the Bill would simply provide a loophole that could be exploited for unacceptable purposes in the future.
The example given by the DTI of diseased cows strikes me as odd. I come from Cumbria, one of the areas of the country most affected by the foot-and-mouth outbreak, and I clearly recall that the Government considered whether to use the Export Control Bill at the height of the crisis to control the export of cows. They decided then that it was not the right vehicle. Indeed, during the consultation on the Bill, the issue of agricultural products was raised by the Quadripartite Committee, which asked whether extra controls should be inserted in the Bill to address it. The Government stated that exports of this nature are matters of exclusive European Community competence and that if there was any doubt then Clause 5 of the Bill already gives them all the power they need.
I conclude my intervention by putting some specific questions to my noble friend. It will help the Committee if he can answer them. Does he agree that it would be unfortunate to have a caveat in the Bill that allowed a future government to disregard concerns over human rights and sustainable development in arms exports decisions? Again, we have no doubts about my noble friend, but, as was argued on a previous amendment, we are introducing a law which will be there whoever may be in the ministerial position. Do not the Government therefore share the concern that the words "if any" could allow this to happen? Do they accept that if they removed this caveat they would still have all the necessary power they need to control exports in emergency situations?
Why do the Government propose to replace the stronger language of Clause 7—"have regard to"—with the weaker language of "consideration (if any)" in the amendment to Clause 8? Why are the words "if any" needed in the guidance to control emergencies such as diseased cows when these are already dealt with under Community law and elsewhere in the Bill? Would not the Animals and Animal Products (Import and Export) (England and Wales) Regulations 2000, as amended, be a more appropriate vehicle to control the export of diseased cows? I hope that my noble friend will be able to deal with these points when he comes to reply.
It is alleged—I say no more because I have not had an opportunity to check my source—that a Minister in a previous government once rose to move regulations against racial discrimination and said:
"I introduce these regulations in the spirit of a wine waiter asked to serve a Coke".
Can the Minister understand why the words "if any" have reminded me of that story?
I am not sure whether or not that is a technical point. I did not speak on Second Reading but, having listened to the whole debate on the proposed new clause before Clause 7 and the potential amending Amendments Nos. 48B and 48C, I understand very well why the phrase "state that regard shall be had" is so important in the minds of those supporting Amendment No. 48B.
However, my technical point is this. Subsection (6) of the proposed new clause states:
"A copy of any guidance shall be laid before Parliament and published in such manner as the Secretary of State may think fit",
Amendment No. 48C seeks to amend this and requires the laying before Parliament to be achieved within 28 days. I am no lawyer, but should it not say within 28 days of what? Surely it means within 28 days of being produced. Should it not say so?
I shall speak to Amendments Nos. 52 and 54, which are part of this group dealing with guidance. Amendment No. 52 touches on a point mentioned by my noble friend. It is tabled because we are not happy with the idea that the guidance, even though it is to be laid before Parliament, should be published,
"in such manner as the Secretary of State may think fit".
Let us suppose that he decides not to put the matter on the Order Paper but merely leaves it on a piece of paper in the Library, or pinned on the notice board near to the Peers' Dining Room. Is that appropriate publishing? The phrase,
"as the Secretary of State may think fit", is unusual wording to include in a Bill. We should like it to be littler clearer.
The Minister is aware of my strong concern in relation to the Employment Relations Act 1999; namely, over the power given to the Secretary of State to amend regulations by Act of Parliament, which is fair enough, or by another regulation, which is also fair enough. But the words "or otherwise" are added—nothing else, just those words. The Minister has not yet been able to give a satisfactory explanation of what "otherwise" might be. There are enough problems with the Government trying to sideline Parliament as it is, without our giving them licence to do so by leaving in the clause the vague wording,
"as the Secretary of State may think fit".
Amendment No. 54 is the crux, the most important part, of what is needed to make ministerial guidance open and transparent. My husband has a framed cartoon on the board table in his office. It depicts the chairman saying to the assembled directors:
"Of course, it is only a suggestion, but let us not forget who is making it".
Let us not make any mistake here. Ministerial guidance, although not having the force of law, will obviously have considerable influence, both on applicants for licences and on the officials who have to administer the system. Indeed, any departure from the published guidelines in individual cases may well result in the Secretary of State having to face a judicial review. By requiring the Secretary of State to make changes in the criteria, which to all intents and purposes are a change in the administrative law before Parliament, in the way described in Amendment No. 54, we are simply ensuring that Parliament has a democratic say in the future policy of the department. No less importantly, the amendment would ensure that there was no possibility of any person being innocently misled as to what his rights and obligations are.
I have not been present for the whole of this debate because I was listening to no fewer than three health Ministers briefing me about the National Health Service Reform and Health Care Professions Bill which will come up in about 10 days' time and in which I shall be involved.
I share the anxieties expressed by my noble friend Lord Judd about the words "if any" and about how they might be misused in future by a successor to my noble friend the Minister. Yesterday, we learnt that Tanzania is to go ahead with the controversial project for a rather grandiose air traffic control system. The Minister concerned said that no corruption had been involved. I suggest that "corruption" was not the main issue. It was that firms in this country had been able to apply heavy pressure to get the Tanzanian Government to agree to this inflated scheme, and that the Department of Trade and Industry had put no impediment in their way. The words "if any" might allow a future Minister to do exactly the same with a similar project. I look forward to hearing what my noble friend has to say in answer to all these pleas.
I entirely agree with what has been said throughout the debate, especially with the remark made by the noble Lord, Lord Judd, that what matters is not so much the language on the face of the Bill but the intentions of a future government and how they intend to carry these matters into effect. All that we can do is to deal with the wording as we find it and to try to pin down the present Government in so far as we can to the principles, particularly those enunciated by my noble friend Lord Redesdale; namely, that we want to see hard and fast progress made on the questions of sustainable development, human rights and regional stability.
The reason for our anxieties has been expressed by a number of Members of the Committee. The noble Lord, Lord Rea, has just referred to the case of the £28 million scheme for Tanzania, which is well outside the relationship between the spending on that particular scheme and the development needs of the country. As regards the sale of weapons to India and Pakistan and to South Africa, I agree with everything that has been said. Those sales represent a material diversion from the development needs of the countries concerned.
I gave the Minister notice of a further question relating to the guidance that may be given in relation to Clause 4(1), which provides that trade controls can include the prohibition or regulation of the movement of "goods of any description". I want to refer in particular to the activities of British firms in moving weapons from third countries to prohibited destinations such as UNITA and the RUF.
Two British companies were associated with Mr Victor Bout, who has been mentioned in recent news reports as having conveyed large quantities of weapons to both those destinations. Will the guidance that the noble Lord intends to issue under the terms of the new clause include reference to the activities of companies engaged in the transportation of weapons from third countries to destinations such as I have mentioned which are prohibited?
The two companies about which I wrote to the noble Baroness, Lady Amos, have both ceased to be associated with Mr Victor Bout, but in very recent days. It is a matter of great anxiety that it is possible for companies to engage in activities that are contrary to the principles of the United Nations—to assist in the transfer of weapons into sensitive areas of the world where internal conflicts are taking place. I hope that the guidance will make it clear that such activities are prohibited and that licences will be required for either the insurers of companies transporting weapons into destinations such as that, or any other connection with air freight for such sensitive destinations.
Perhaps I may begin by saying to the right reverend Prelate the Bishop of Lichfield that we totally agree about the principles of the Bill. We believe that sustainability is a criterion that should be applied to arms sent to countries where that may have an impact on the sustainability of the economy. There is no disagreement about that. We believe absolutely in that principle. What we are talking about are technicalities relating to that.
The remark made by the noble Earl, Lord Russell, that I might be approaching the Bill rather like a wine waiter asked to put forward a bottle of Coke was rather offensive, when it is well known that I am strongly committed to the principles behind the Bill, as indeed are the Government. I approach the matter as a wine waiter asked to put forward a the most delicious bottle of Château d'Yquem I can find. It do it with enormous enthusiasm and commitment to what I believe is an extremely important Bill.
The Minister has read into my remark an intention that I did not intend to convey and which I apologise unreservedly for having appeared to convey. I merely said that the provision reminded me of this, simply by its dismissive tone. I attributed no motive to the Minister whatever. If the Minister feels that that impression was given, I should like my withdrawal of any such impression to be on the record.
I accept the noble Earl's apology, but there is nothing dismissive in our approach to the issue. There are good reasons—although the noble Earl may not agree with them—why we think that "if any" should be there.
In response to the right reverend Prelate, there is no point in having such debates if the Government do not listen to and take account of the points that are raised. To criticise us for producing the amendments at the last moment is to denigrate the process of debate. We are debating the Bill because we want to listen to views that are put forward. If we think that those views have validity, we are prepared to go to a great deal of trouble to amend the Bill, because we want to get it right and ensure that it meets the objectives that we all share. That is the right way to approach such a Bill.
I entirely understand the reasoning behind Amendment No. 48B and I have sympathy with the intention of helping to ensure that future governments could not seek to exclude consideration of sustainable development or other issues listed in the schedule from the export licensing process. However, the amendment would have a number of unfortunate consequences, which I believe those who have tabled it do not intend.
The problems that lie behind our difficulties with the proposal are ones that we wrestled with when we prepared our own amendment. We believe that the terms of our amendment provide the necessary assurances that a future government could not simply decide to ignore important considerations such as sustainable development and human rights. I shall enlarge on that point shortly, but first I shall describe the difficulties that the amendment presents, focusing on the two most serious issues.
First, one consequence of the amendment would be to require this and future governments to consider sustainable development and schedule issues whenever they exercised licensing powers under the Bill. It may seem easy to take out "if any", which is a natural reaction when looking at the amendment, but there are difficulties. As noble Lords are aware, the Bill does more than control just arms and other military equipment and technology. For example, the Bill allows the Government to introduce controls on exports in pursuit of international or EC obligations. It would not necessarily be for the UK, in these circumstances, to decide what considerations were or were not relevant when taking export licensing decisions.
Let me give an example. At a point in the future, the international community might decide to control exports of widgets, on the grounds that they were a risk to health. The UK Government of the day might choose to implement that international obligation to introduce export controls on widgets using the powers in Clause 5 of the Bill, as amended. However, the Government would only be empowered to implement the exact terms of the obligation. Unless the international obligation empowered the Government to control widgets on grounds of their effect on national security or sustainable development, for example, as well as on grounds of public health, it would not be open to the Government to consider anything other than public health reasons in taking licensing decisions.
The amendment would force the Government to have regard to the schedule table and sustainable development considerations in all export licensing cases, even in a situation in which they were not legally entitled to give any consideration to those issues when taking export licensing decisions.
Another serious difficulty is that the amendment would fetter the Government's ability to give guidance that said that in certain cases consideration of sustainable development and issues in the schedule table were not relevant. The Government need to retain that flexibility, as there may be cases in which it would not be relevant or appropriate to consider sustainable development or any other issue. That is why the reference to "if any" in the Government's new clause is needed.
For example, our new clause will require the Government to lay before Parliament guidance on the general principles to be followed when exercising licensing powers on objects of cultural interest. The Government do not envisage that sustainable development or consequences in the schedule table, such as development of weapons of mass destruction, are likely to be an issue with regard to objects of cultural interest. The guidance issued by the Department for Culture, Media and Sport will state that, in general, no consideration will be given to such issues when exercising licensing powers on cultural objects, as such considerations would be neither relevant nor appropriate.
I apologise for intervening, but could the Minister clarify what he has said? There are certain instances in which the Minister believes that "if any" would cut out vast areas that should not be covered in the Bill. That is not the intention of the amendment. At what point would sustainability come into effect? When would the relevant Minister or the Secretary of State say that an issue had a bearing on sustainability? If sustainability is not a hard and fast rule, there will be areas of debate over what fits into the criteria for sustainability and what does not.
We have to examine the areas in which we would want to give guidance that sustainability would not be applicable. There would be rather few of those, but I have mentioned two cases—in one it could not be done and in the other a government would certainly want to be able to give guidance that in certain cases such considerations did not apply. Otherwise we would not be able to give guidance that sustainability would not apply in those cases. That would be unfortunate, because we want to be able to convey reasonably to people what criteria would be applied in particular circumstances.
We also need to remember that the guidance we provide will have profound importance for those affected by the Bill. To ensure effective compliance with the new legislation, we need to be able to offer those who must comply as much clarity and legal certainty as possible. We must not be bound to a costly, mechanistic process that obliges us to consider every issue in every case, whether relevant or not, and which would detract from the legal certainty and clarity as to the reasons for the taking of particular licensing decisions.
When we published the consolidated criteria on arms exports in October 2000, we promised Parliament that we would apply the criteria "using judgment and common sense". However, maintaining that necessary flexibility and ensuring that this and future governments can continue to act within the legal bounds of our international obligations does not mean that we have created a loophole in the Bill so that future governments could simply choose to ignore sustainable development and schedule table considerations. The need to balance the need for flexibility with the need to ensure that such a loophole is not created has led the Government to devise the text that we have proposed. I entirely understand the concerns that some may have on that point, but I believe them to be unfounded. I hope that I shall be able to reassure noble Lords that the amendment is not necessary.
The words "if any" in the new clause would not allow a future government freedom to decide to ignore sustainable development or any of the schedule table issues by saying that they had considered sustainable development and concluded that it had no place in the consideration of any export licences.
The Bill makes it clear that it will be a requirement on all future governments to issue guidance about the general principles to be followed when exercising licensing powers and that the guidance must address sustainable development and the other important issues, such as human rights. Were a future government to decide not to take sustainable development considerations into account in arms exports, our new clause would require them to publish the decision, and so take it in the full glare of parliamentary scrutiny. It would also require the government to justify such a decision. Without such justification, a decision of that nature would be open to challenge in the courts.
Noble Lords will be aware that sustainable development and the issues listed in the schedule table are all reflected in the EU code of conduct on arms exports. While the UK is a member of the European Union and committed to the EU code of conduct on arms exports, it is hard to see how any future government could ignore any of the criteria, including that on sustainable development, without facing a real likelihood of successful challenge in the courts.
The code of conduct is a politically binding commitment to our EU partners under the common foreign and security policy. The only ways open to any future government to renege on that commitment would be either to renegotiate the code of conduct with our EU partners to remove one or more of the criteria—changes that I believe our partners would be most unwilling to make—or to withdraw unilaterally from the code, which would have enormous political consequences.
As long as the EU criteria exist and have not been denounced by the UK, a future government would find it very hard to justify any deviation from full application of the criteria. Moreover, the explicit reference to the consolidated criteria that we have included in subsection (8) of the new clause and the clear statement that they,
"shall (until withdrawn or varied under this section) be treated as guidance" under the Bill reduces still further a future government's room to deviate from any part of the criteria.
I hope that what I have said today has reassured noble Lords that the Government's proposed drafting does strike an appropriate balance between maintaining a right and proper flexibility to decide—where it can be justified—that certain considerations are not relevant and preventing a future government from simply ignoring the schedule table and sustainable development issues. While I have very real sympathy with the aims of this amendment, not only do I feel it is not necessary, I also feel that it would be damaging to the Bill. In view of this explanation, I hope that noble Lords will agree to withdraw Amendment No. 48B.
Amendment No. 48C seeks to provide that any guidance issued under the new clause must be laid before Parliament within 28 days. Although I have every sympathy with what the amendment is seeking to do, the fact is that it is not required. The effect of the new clause as drafted is in fact to set a more demanding deadline for laying guidance issued under this clause before Parliament than the amendment seeks to do. The new clause already provides that any guidance issued under it shall be laid before Parliament and published, and there are powerful reasons why the Government will have to do that promptly and certainly well within a period of 28 days.
The new clause requires the Government to issue certain guidance, on general principles, to lay it before Parliament and to publish it. Were it not so published and laid before Parliament—the Government would expect to do both as nearly at the same time as is practically possible—doubt would be cast on whether that guidance had been properly issued as guidance under the new clause. I say as nearly at the same time as possible because a few days may be needed to publish a document suitable for laying before Parliament, while there may be a need to publish by more informal means—such as on the department's website and notices to exporters—any new guidance needed to deal with, for example, a crisis abroad.
Therefore, the Government would not be entitled to take licensing decisions in accordance with guidance that had not been published without risking challenge to such decisions by judicial review. We would also have to take steps to lay it before Parliament as quickly as possible thereafter—certainly within a few days—for the same reason. I think that that also deals with the point on the number of days after which guidance should be issued. As no effective action can be taken on the guidance until it is published, the Government have every incentive to get on and issue guidance as quickly as possible.
In view of this explanation, I hope that the noble Lords, Lord Razzall and Lord Redesdale, will agree that their amendment is not necessary to ensure prompt laying of guidance under the new clause before Parliament.
Finally, and returning just briefly to the issue of sustainable development, given the interesting and important discussion we have had, I thought that the Committee would wish to be aware that the Government have recognised the need to consider how the sustainable development criterion—criterion eight—of the Consolidated Criteria can most effectively be applied in assessing relevant export licence applications. The Government agree that there is a need for clearer procedures within Whitehall for reaching decisions where sustainable development is an issue. Therefore, I am pleased to announce today that the Cabinet Office has offered to lead an inter-departmental discussion of the issue, involving all departments with an interest.
I turn to Amendments Nos. 51 and 54. The amendments would have the effect that any guidance altering export licensing criteria issued by the Secretary of State under Clause 8 would be subject to parliamentary approval. As I explained, the government amendments that have just been agreed to will require the Secretary of State to issue guidance on the general principles to be followed when exercising licensing powers. This change will ensure that if any government wish in future to change the principles upon which the export control regime operates, they would be obliged to issue guidance stating what the new principles are and to lay that guidance before Parliament. This will ensure that no future Secretary of State could alter export licensing policy without informing Parliament.
The Government do not, however, believe that it is appropriate for there to be a duty to consult on guidance, or for the guidance to be subject to parliamentary approval. As is made clear in the Bill, guidance on the general principles to be followed when exercising licensing powers will incorporate the EU code of conduct on arms exports, which is a political agreement between EU member states. The code is kept under review by member states who may wish to agree changes and improvements to it. The Government need to be able to commit to such changes. We do not believe that it would be right for changes or additions to international agreements such as the EU code to be subject to potential veto by Parliament.
For similar reasons, it would be misleading to consult industry or non-governmental organisations on agreements that the Government are obliged to implement by virtue of their membership of international organisations. However, the Government are aware of the degree of public and parliamentary interest in export licensing. That is why we have carried out extensive consultation during formulation of the Bill. We also intend to hold a full public consultation on the draft orders to be introduced under the Bill, and would expect at the same time to explain in more detail what guidance we intend to issue under the Bill. In addition to formal public consultation, the Government are in regular contact with those organisations with an interest in export control policy in order to hear their views.
The proposed amendments also seek to ensure that any guidance under Clause 8 is laid before Parliament and published within 40 days. This time limit is unnecessary as Clause 8 already provides that any guidance issued under it shall be laid before Parliament and published, and there are powerful reasons why that should be done promptly. Publication of guidance gives exporters a degree of certainty as to how controls can be expected to be operated in a particular case. An exporter is entitled to assume that any licensing power would be exercised in accordance with guidance already published. If the power were not so exercised, he would be able to challenge a licensing decision by judicial review. To avoid that risk of challenge, the Secretary of State will need to publish guidance as soon as possible and in any event before taking a decision based on it.
Moreover, the Government do not consider it sensible for all guidance, including practical guidance on procedure, to have to be laid before Parliament as proposed by Amendment No. 51. The Export Control Organisation publishes on its website a vast range of guidance for exporters; for example, instructions on how to fill in export licence application forms or details of forthcoming export control seminars. This is updated constantly and if necessary on a daily basis. To lay this material before Parliament every time it was updated or changed would be unnecessarily to overburden the procedures for laying documents before Parliament. It would be unnecessary because this material is of course accessible to all Members of Parliament and the public from the DTI's website or on request from the Export Control Organisation.
Amendment No. 52 seeks to prevent the Secretary of State from having the flexibility to publish guidance in such manner as she thinks fit. This phrase is included to make it clear that the Secretary of State may publish guidance in whatever manner is most appropriate to that particular case. For example, guidance informing exporters of the introduction of a new arms embargo is usually published in the London Gazette and the Edinburgh Gazette as well as on the Export Control Organisation website, while guidance on procedures to follow in applying for an export licence might be published on the Export Control Organisation website and in information packs for new exporters. Although removing this phrase as proposed in the amendment would not alter the Secretary of State's discretion to publish in whatever manner she thought fit, we believe for the sake of clarity and transparency that it should remain in the Bill.
In view of the explanations I have given, I hope that the noble Lords, Lord Razzall, Lord Redesdale and Lord Rotherwick, and the noble Baroness, Lady Miller, will be content to support Amendment No. 48A and agree to withdraw or not to press their amendments to it.
As the right reverend Prelate the Bishop of Lichfield said, the purpose of Amendment No. 48B was to highlight the issues of accountability and transparency. As the Tanzanian affair has shown, there are conflicting pressures on government members. We were therefore attempting to beef up the Bill's wording to avoid possible loopholes. The Minister has given a full reply which I shall read closely in Hansard. Nevertheless, this is an issue to which we may well return, perhaps with a different form of words, at the next stage. I beg leave to withdraw the amendment.
I speak also to Clause 8. The new clause proposed by the Government in Amendment No. 48A, which the Committee has approved, effectively replaces the existing Clauses 7 and 8 of the Bill. As I have explained, the new clause improves the Bill by strengthening the role played by guidance under the Bill and by putting beyond all doubt the Government's continuing commitment to sustainable development, and all the other relevant consequences listed in the schedule, in the export licensing process.
In view of that, and the explanation I have already given as to why the new clause should replace the existing Clauses 7 and 8, I urge the Committee to agree that the existing Clauses 7 and 8 of the Bill shall not stand part.
I asked the Minister a question about the activities of Mr Victor Bout and the two companies which were associated with him in the United Kingdom. Willis Insurers insured the aircraft which were used by Mr Victor Bout to ferry illicit weapons to the armed opposition movements in Sierra Leone and Angola. It has also been reported recently that he took arms to the Taliban in Afghanistan, all the time apparently being insured by a British company, Willis Insurers, which cancelled the policies only in December 2001.
As regards the registration of the aircraft, the noble Baroness, Lady Amos, told me in a letter—I believe that I sent the Minister a copy—that United Air Services only deregistered the aircraft belonging to Mr Victor Bout two weeks ago. I asked whether the guidance that he intends to issue under the Bill will deal with the activities of air freight companies—and those who insure them—which are engaged in ferrying illicit weapons to armed oppositions movements or movements with which we were at war such as the Taliban.
I apologise to the noble Lord for not answering that question. The issue relates to trafficking and brokering. That is not particularly applicable to this part of the Bill. Clearly, the guidance will cover trafficking and brokering. The Bill will now cover factors like insurance. I can assure the noble Lord that the issues he raises will be covered by the guidance although they come under trafficking and brokering rather than this clause.
In moving the amendment, I speak also to Amendment No. 62. The purpose of the amendments is to ensure that the Export Control Bill refers to the British overseas territories and to UK persons who are citizens of the territories in terms which are consistent with those used in the British Overseas Territories Act which received Royal Assent on 26th February this year. The British Overseas Territories Act updates the terminology employed to refer to the overseas territories in existing legislation such as the British Nationality Act 1981 and the Interpretation Act 1978. In particular, it replaces the outdated terms "British Dependent Territory" and "British Dependent Territories citizen" with the terms "British overseas territory" and "British overseas territories citizen". It is naturally important that the Export Control Bill and secondary legislation made under it should follow suit in this regard. I invite the Committee to accept the amendment.
Clause 10 covers definitions of terms to be used in the Bill. The clause states that the term,
"'objects of cultural interest' should include objects of historical or scientific interest".
I have tabled the amendment in order to ask the Government to explain why they have said that the term includes "objects of historical or scientific interest". Does that imply that scientific objects do not have to reach any historic threshold before they are caught by the definition? Could they be newer than 50 years old and be caught by the Bill? In other words, does it get round the definition that will come in the dummy draft order?
Why have the Government chosen to put those two categories and no others on the face of the Bill? I do not object to the inclusion of the two categories. But why have those two been chosen and not others? I suggest a third category: archaeology. At col. 766, on the first day in Committee, the noble Lord, Lord Davies of Oldham, referred to the problem the Government have in finding a definition of "fossil". We found that intriguing. He said that if a definition were to be found it would be put in the draft order. In the meantime, he considered that the drafting of the Bill to include objects of historical or scientific interest was sufficient to cover fossils for the time being. If it is only for the time being, and temporary, can we expect some later amendment? Is it still all right for the time being? Would it not be more appropriate to signal that the Bill covered such matters simply by putting archaeology on the face of the Bill?
I am moved to raise the issue because I noted some incongruity between the drafting of this Bill and that of the late lamented Culture and Recreation Bill. In that Bill the Government adopted a somewhat different approach. In Part 4 of the Bill—it is, of course, burned on noble Lords' hearts—the Government defined objects of cultural, historic or scientific interest as though they were separate matters. History and science were listed as separate from culture.
The Government then said that the objective of culture online was to promote knowledge and appreciation of culture, history and science, again treating them as different. If they were different matters in the Culture and Recreation Bill, why are they now brought under the heading of culture in this Bill? I beg to move.
I declare an interest in the amendment as a professional archaeologist. I thank my noble friend for it. Not surprisingly, it seems entirely appropriate although I imagine that the Minister will explain that he would wish to subsume archaeological objects under historical objects, and no doubt cultural objects likewise.
However, I have a further reason for rising to my feet. The Government have shown recently more interest than previously in the issue of diminishing the flow through this country of looted antiquities. Looted antiquities come from destroyed archaeological sites. Had I been present for the earlier debate on Amendment No. 48A and the notion of sustainable resources, I would have pointed out that sustainability is an important question for many countries whose archaeological sites are being systematically looted. I give the example of Peru where many archaeological sites have been and are being looted. This diminishes not only the archaeological resource, but also the tourist potential of such regions. In Peru, for example, there is one site where the local archaeologist, Walter Alva, was able to stem the looting and set up a highly influential museum which has attracted many tourists. I refer to the site of Sipan.
Therefore, I was dismayed to hear the noble Lord, Lord Sainsbury, if I heard him aright, indicate that he explicitly wished to exclude cultural objects from the provisions on sustainability. One of the purposes of the Bill—it may have escaped the noble Lord's notice, but I hope that it has not escaped the notice of his noble friend—is to maintain a control on the export of cultural objects, not only those originating within this country, but as the noble Lord, Lord Hylton, indicated earlier, to diminish the flow of looted objects entering this country and leaving it again in the process of the illicit traffick in antiquities. One purpose of the measure—this is acknowledged and will, I am sure, be acknowledged by the noble Lord who will reply to the amendment—is to control the import and specifically the export of antiquities. The noble Lord will recall that his noble friend Lady Blackstone announced in a Written Answer that it is the Government's intention to introduce legislation making it a criminal offence to traffick in, to sell or to import, stolen antiquities or antiquities which have been illegally excavated. That is where the issue of sustainability comes in. It is for those reasons that the issue of archaeology is particularly relevant to the subject area of the Bill and to the proposed legislation which I was glad that the noble Baroness, Lady Blackstone, announced.
For those reasons I believe that archaeology, or objects of archaeological interest, have a special place in the Bill because it is they, the covetousness they inspire and the illicit traffick in them, which leads to the destruction of archaeological sites. Consequently, in many countries of the world there is a diminishing resource for which the criterion of sustainability would be entirely relevant. I support my noble friend's amendment.
I echo that support for the amendment. Archaeology is a much underrated profession and should be included in many other Bills. There is an important issue here which illustrates why archaeology should be included in the Bill's provisions. I refer to the nature of the illicit trade in antiquities, one of the largest markets for which occurs in Britain. That trade is often used as a means of laundering money involved in drugs or even arms deals. Given the scale of the trade in illicit antiquities, it is appropriate to include archaeology in the Bill's provisions.
In Committee on 7th February I declared an interest at cols. 761 to 762 of Hansard in relation to the art market and I shall not repeat it. I support my noble friend on the Front Bench and the observations that my noble friend Lord Renfrew has just made. His qualifications for speaking are far greater than mine. However, I should declare an interest as a fellow of the Society of Antiquaries. My noble friend Lord Renfrew alluded to the drafting issues to which the Minister may allude in responding to the debate.
I say light-heartedly with regard to that longstanding definition of prehistory as being a combination of Sir Rider Haggard's She and Sir Leonard Woolley's Excavations at Ur, that there are distinctions in these matters. There is something to be said for the definition being larger rather than smaller. I well remember in the works of the late Douglas Woodruff an account of entering a cathedral on the Continent. In the treasury where reliquaries were held, he was offered the opportunity to see both the skull of the infant Samuel and the skull of Samuel as an old man. Both those objects would have been of historic and scientific interest if they were side by side. Therefore, it seems to me no bad thing that our extension should be broadened.
My noble friend Lord Renfrew referred to Peru. For 20 years I was the trustee of the Cusichaca Trust and chairman for most of that period. That trust was set up to explore a particular archaeological site on the Cuzco/Machupicchu railway at Cusichaca. It was a distinguished dig which lasted several years. In the process we completely restored the Inca canals. It was in the process of restoring the Inca canals that we discovered that a valley which had sustained 1,800 people in the time of the Incas had sustained less than a quarter of that number in the previous century. That took us as a trust into the areas of developmental activity and ecology. I totally support what my noble friend has just said. Setting up a museum for the finds which we discovered in terms of the original archaeological work was a part of the development work we subsequently carried out. As regards sustainability, I very much support the identification of archaeology as a separate issue. I certainly endorse everything my noble friend said about the illicit trade and, as I said earlier, I am delighted to support both my noble friends.
There are times when one cannot help but envy the experience that is brought to bear in the Chamber. My envy on this occasion is directed at the noble Lord, Lord Brooke. I have long wished to visit Machupicchu. To hear that he had the opportunity to take part in such an exercise fills me with great envy. I congratulate him on the work that he carried out and on the lessons he drew from that.
Lest I be cast as some kind of Philistine without interest in archaeology, I hasten to say that I do not present the following arguments in the hope that the noble Baroness will withdraw her amendment. I have nothing but total admiration for the value of archaeology and the work of archaeologists. For a short while my daughter carried out some archaeological work. I have never known her to be more fulfilled and happy than when she did that.
The issue that we are debating is whether it is helpful to define "archaeology" within the framework of the Bill and include it in the clause that we are discussing. The Government resist that suggestion as we have sought to include as wide a definition as possible of goods, artefacts and scientific dimensions. As regards creating a list, the danger is that none of us can foresee a particular category into which some commodity in the future might not fit and therefore would not fall within the parameters of the legislation. We sought to draft the Bill in the widest possible way so as not to run the risk of inadvertently excluding any category.
If the noble Baroness's amendment were accepted, it might have the unfortunate consequence of narrowing by implication what is at present a wide definition which is deliberately designed to be so. If certain categories of objects are not specifically referred to, queries might be raised as to whether they are therefore excluded from the definition. For example, as there is no express reference to artistic objects it may be argued that such items are excluded from the definition. The danger is that we would embark on the slippery slope of having to provide an all-encompassing definition comprising an extensive list which still falls short of the protection that Members on all sides of the Committee seek to achieve for the objects that we are discussing.
The schedule to the dummy order on the Export of Objects of Cultural Interest, which mirrors the existing Export of Goods (Control) Order, refers to,
"any objects of cultural interest manufactured or produced more than 50 years ago".
That is a very broad definition and one that would include items of archaeological interest. The Government previously announced that it is not their intention substantially to change the export control regime for cultural objects. Of course, that regime includes archaeological items. I can assure the noble Baroness that that will continue to be the case under the legislation, when enacted.
The noble Lord, Lord Renfrew, referred to the illicit trade in such goods. The Bill allows for the Secretary of State to impose export controls to give effect to any international obligations, which will include the UNESCO convention of 1970, when the Government have completed accession. As I sought to express in our discussion on an earlier amendment, we expect that to take place very soon. As the noble Lord knows, that convention is very much aimed at stemming the trade in any cultural objects that are on the market illicitly.
I recognise and value the way in which the noble Baroness presented her amendment, and, indeed, the support that she rightly received from all sides of the Committee. It is only right that noble Lords should be reassured that the legislation contains adequate protection for archaeological objects. Without straining the issue too much, I also realise that the concept of sustainability might well be included in respect of economies where the archaeological dimension of the country forms a very important part of its tourist trade and, indeed, of its foreign earnings. That point has been well taken. I can assure the Committee that the breadth of definition and the lack of precision in the Bill is intended to be its virtue; in other words, it is intended to ensure that we are able to meet all our obligations within this framework and cover the whole range of objects to which noble Lords have rightly drawn our attention this evening.
I am grateful to the Minister for his response. However, I should like, first, to thank all those who have supported my amendment. I have in mind my noble friends Lord Renfrew and Lord Brooke and also the noble Lord, Lord Redesdale, all of whom have far greater experience and expertise in archaeology than I, even though my first-ever prize at school was a book on the subject. However, I hasten to add that that was some 40 years ago.
The crumb of comfort that I can perhaps draw from the Minister's response is the fact that he pointed out that he places value upon archaeology. As the noble Lord, Lord Redesdale, said, it is a much underrated and undervalued profession and subject. I was pleased to hear noble Lords provide a little further information on the subject of archaeology to the annals of the records in this place.
I am always intrigued when the Government try to prevent us from extending a list by adding further definitions on the basis that, if one does so, then somehow it will become an exclusive rather than an inclusive list. I am sure that this is a matter to which we shall return on many an occasion and, indeed, when dealing with many a Bill. However, on this occasion I beg leave to withdraw my amendment.
In moving this amendment, I shall speak also to Amendment No. 63. Both amendments relate to the definitions clause. Amendment No. 62 is purely a drafting matter. The clause defines the phrase "a United Kingdom person", which is used in the legislation and includes,
"a body incorporated under the law of any part of the United Kingdom".
We now have a new form of legal entity called a "limited liability partnership" which is a cross between an ordinary partnership between individuals and a private limited company.
Limited liability partnerships are, as I readily concede, bodies incorporated under the law of the United Kingdom. To that extent, I expect that the Minister will say that this amendment is unnecessary. However, I have prefaced my amendment with the words,
"for the avoidance of doubt".
This is a device that has been used in other legislation. It is certainly used in legal documents in cases where a general definition could, or indeed does, include something or other that is nevertheless specified in detail to make it absolutely clear.
Limited liability companies are newly introduced into the world of commerce, where few people are aware of their existence at present. For the sake of clarity, the novelty of this type of body calls for the addition of just the 10 words that I propose. They do not in any way detract from the Bill as drafted but only strengthen and clarify it. I trust that the Government will find it possible to accept my proposal.
Amendment No. 63 is of more substance but is, nevertheless, constructive. I hope that it will close a potential loophole and thus strengthen the Bill. The legislation uses the phrase "a United Kingdom person" to define those affected by the Bill's provisions. Subsection (2) of Clause 10 covers: various categories of British citizens; British subjects; and a British protected person. However, the definition does not cover the activities of a person ordinarily resident in the United Kingdom—a person who may be conducting or managing a business exporting the sort of goods and services that are governed by this legislation.
The latter is particularly important in relation to Clause 4(8), which authorises the imposition of trade controls on acts carried out outside the United Kingdom, but only if they are carried out by what the legislation calls "a United Kingdom person" or someone acting under his control. This subjection, quite rightly, eschews any attempt to obtain extra-territorial jurisdiction over foreign persons. However, there is no reason why any person normally resident in the UK should be exempt from the provisions of this legislation in relation to activities that he conducts abroad. Persons ordinarily resident in the UK are, and should be, subject to all of its laws. I beg to move.
When we debated this in a preliminary way in Committee on 7th February I raised the matter at times when the noble Lord, Lord Sainsbury, was dealing with the amendments. I apologise to noble Lords for not putting the issue to the Minister as clearly as I might have done. I warmly congratulate my noble friend Lady Miller on having composed an amendment that implies exactly the point that I was seeking to raise at that stage. However, because I raised the matter earlier and was not absolutely confident that the noble Lord, Lord Sainsbury, and myself were mutually understanding each other, I greatly look forward to hearing the Minister's response.
Amendment No. 61 seeks to ensure that limited liability partnerships are included in the definition of a "United Kingdom person" and hence can be controlled under the Bill. I can assure the Committee that, as the noble Baroness generously conceded, limited liability partnerships are bodies incorporated under the law of the United Kingdom—indeed, those are the words that are found, more or less, in the text of Clause 10(1)—and are, therefore, already included in the definition of a "United Kingdom person" in the Bill. In the circumstances, I invite the noble Baroness to withdraw her amendment on the basis that to include those words would add absolutely nothing to the meaning of the legislation.
I agree with the noble Baroness that Amendment No. 63 deals with the more substantial point. It seeks to extend the definition of a "United Kingdom national" in Clause 10(2) to include persons who are,
"ordinarily resident in the United Kingdom".
The effect of this amendment would be to widen significantly the scope of the extra-territorial powers provided under Clauses 2, 3 and 4 of the Bill. By consequently broadening the definition of a "United Kingdom person", as employed in those clauses, to include any persons ordinarily resident in the UK—that is, including foreign nationals—the amendment would make it possible for the Government to prosecute foreign nationals ordinarily resident in the UK for acts carried out by such persons entirely overseas, including acts carried out in their home state. We believe that that would be an inappropriate and unjustifiable extension of extra-territorial jurisdiction in those areas.
As Members of the Committee know, our policy is to assert extra-territorial jurisdiction extremely sparingly. Where it does exist, it is generally applied only in respect of UK nationals. Corruption and assisting illegal immigration are examples. Any further extension of jurisdiction to anyone other than UK nationals has been limited to the very few areas where we are required to do so under international obligations or where there can be said to be an overwhelming international consensus—for example, in relation to war crimes, sex tourism, hijacking or acts of piracy.
We believe that it is right to take the power to prohibit or regulate the activities of British nationals abroad under Clauses 2, 3 and 4. The dummy draft orders that were published last October describe the activities to which we propose to apply extra-territorial controls—for example, the trafficking and brokering of arms to embargoed destinations or the provision of technical assistance intended for use in a weapons of mass destruction or related missile programme. We believe that activities of that kind are sufficiently serious to warrant the UK taking the power to sanction any British national who engages in such activities overseas. However, it cannot be said that all or even most other countries share our belief in the need for controls on all the activities targeted by Clauses 2, 3 and 4. By extending the extra-territorial powers in the Bill to include any persons ordinarily resident in the UK, it would be possible for a foreign national who normally resides in the UK to face prosecution in this country for an activity that was carried out in his own country but which remains entirely legal there. Taking such a power would be likely to attract the same kind of criticism that the UK has quite rightly directed at other countries that have sought to impose extra-territorial controls on our nationals for activities that are not subject to prohibition or control in this country.
Finally, I point out that while the Government do not believe that it would be appropriate to apply controls that are made under the Bill to activities that are carried out entirely overseas by foreign nationals who are residents of the UK, such persons will be subject to control if any relevant part of the activity takes place in the United Kingdom.
I do not know whether inadvertently I have covered the point raised by the noble Lord, Lord Brooke, on an earlier occasion. I have with me the Official Report of 7th February, and I have read that debate. However, I do not recall precisely the point that he made then but I do not want to conclude without having tried my best to answer his point.
I am most grateful to the Minister. On 7th February, I raised the case of the "sheikh"—the noble Lord, Lord Judd, referred to the association of such sheikhs with the Al'Qaeda network—who did not fall under the Bill's classifications and definitions. He would fall under them if we agree to my noble friend's amendment. My question was: if that person were engaged in controlling activities abroad in a manner of which the Government disapproved, would he be covered by anti-terrorist legislation—I am aware that there is anti-terrorist legislation in this area—or would he escape? The noble Lord, Lord Sainsbury, replied on that occasion that, as he understood my question, the situation would be covered. I raise the matter again—I have the example of my noble friend and her amendment—so that we can be certain beyond doubt and peradventure that all is well.
The Terrorism Act 2000, as the noble Lord forecast, makes it an offence for UK citizens to provide, or invite another to provide, property that may be used for the purposes of terrorism. That applies to activities in this country and to activities that are carried out by UK persons abroad. There are already UN sanctions in place to prevent brokering to Al'Qaeda members and their associates, as designated by the Security Council. The Al' Qaeda and Taliban (United Nations Measures) Order 2002 makes it an offence for anyone in the UK or any UK persons abroad to supply or arrange to supply arms to those who are designated, wherever they are located. I believe that that final sentence answers the noble Lord's point.
What the Minister has just read out confirms that the case that I raised is covered by prior legislation. I am not in the least surprised that the noble Lord, Lord Sainsbury, was not able to point to the legislation at which I hinted in our exchange on 7th February.
The only reason that I can do so is because I have been briefed on it. I invite the noble Baroness to withdraw the amendment.
In moving this amendment, I shall speak also to Amendments Nos. 69, 70 and 70A. All of those amendments have the same purpose. We move from the esoteric subjects that we have been debating so far to the less esoteric topic of the Isle of Man.
The purpose of the amendment and those grouped with it is to ensure that the Bill's provisions, so far as they apply by order to the Isle of Man, are mandatory on the government rather than discretionary. I shall not waste the time of Members of the Committee by explaining how that arrangement works—it is apparent from the way in which the amendments are set out.
The background to this matter involves the significant concern that the Isle of Man has in the past provided a loophole for the export of arms. In particular, there is significant evidence that in 1994 the Isle of Man was used to provide a loophole for the export of arms to Rwanda. Those arms were used in the genocide in that country at that time. A UK government inquiry in 1997 found that the UN arms embargo on Rwanda was not implemented in the Crown dependency, and there was also a delay in its implementation in the dependent territories.
There is significant concern among those who have examined the matter that the Isle of Man could be used to provide a loophole unless it is closed. The amendment would ensure that the restrictions were mandatory by Order in Council in relation to the Isle of Man rather than discretionary. I beg to move.
Amendment No. 69 appears in my name. I support all of the amendments that were spoken to by the noble Lord. I had prepared a beautiful speech on Amendment No. 69 but, given the time and the fact that the noble Lord moved the amendment so well, there is no point in saying more on this matter.
I believe that it is I who should worry. The collective effect of the four amendments in this group would be to extend the Bill, and any provisions made under it, to the Isle of Man. I am grateful for the opportunity to explain why this new legislation does not, in our view, require to be extended to the Isle of Man.
The territorial extent of the legislation that the Bill will replace—that is, the export control provisions of the 1939 Act—includes the Isle of Man. However, in the years since that legislation was introduced, the Isle of Man and UK governments have agreed that the Isle of Man will legislate for and operate its own system of import and export controls and that those controls will mirror those in place in the United Kingdom.
The Customs and Excise Agreement 1979, which governs the customs union that exists between the UK and the Isle of Man, sets out arrangements for co-operation between the UK and the Manx authorities on matters of export and import control. It obliges the Isle of Man to maintain parallel export controls to those which operate here.
In accord with the 1979 agreement, and following consultation between the Isle of Man and UK governments, we have received firm and detailed assurances from the Isle of Man authorities that they have put into place legislation—that is, the Customs and Excise Act 2001, as amended—that will enable the Isle of Man to give full effect to all the controls provided for or made under the Export Control Bill, including the new controls to be imposed on arms trafficking and brokering, intangible transfers and technical assistance.
Given that, it is not necessary, and indeed would not be appropriate, for the Bill's territorial extent to include the Isle of Man. Therefore, Clause 15(4) makes clear that the Bill does not extend to the Isle of Man, except in so far as Clause 14(5) provides for the existing export control law no longer to apply to the Isle of Man. The UK and Manx authorities are agreed that the Bill should none the less include a permissive extent provision that would allow any of its provisions, or any orders made under it, to be extended if necessary to the Isle of Man. Indeed, that is provided for by Clause 15(5).
We have no reason to believe that the Isle of Man will not be able to give full effect under Manx legislation to all the new controls. But both governments believe that it is prudent for there to be an alternative means of implementing in the Isle of Man any future controls introduced under the Bill should it not prove possible for these readily to be given immediate effect under Manx legislation. By way of example, any temporary order introduced for reasons not covered by the schedule would almost certainly require to be given effect in both the UK and the Isle of Man without delay. If it were not possible to implement an equivalent order at the same time under Manx legislation, then it would be possible instead to extend the order directly to the Isle of Man by Order in Council under Clause 15(5).
That is the explanation as to why we have taken the attitude that we have towards the Isle of Man. The noble Lord, Lord Razzall, did not surprise me by mentioning a case which arose a few years ago and about which there may be some misunderstanding. The difficulties in that case, as I understand it, were due principally to a deficiency in the United Nations sanctions order then in place in the UK governing the supply of arms to Rwanda rather than to a delay in introducing the order in the Isle of Man. To the extent that there was a delay in introducing the order in the Isle of Man at that time, the responsibility lay with the UK Government rather than with the Isle of Man authorities.
I want to assure the Committee that, following that case, new arrangements were introduced to provide for closer and more timely liaison between Whitehall departments over the implementation of new United Nations sanctions orders in the whole of the United Kingdom, the Crown dependencies and the overseas territories. We do not believe that there could be another case such as that, and I want to make three points.
First, with regard to the delay issue, as I said, there are new arrangements for closer and more timely liaison. Secondly, the Isle of Man has given the Government a firm assurance that it has put in place the legislation needed to allow it to implement in parallel with us all the new controls that we propose to introduce under the Bill. Thirdly, should the situation ever arise where the Isle of Man is not able to give immediate parallel effect to any new controls introduced under the Bill, Clause 15(5), to which I referred, will allow the relevant provisions to be extended to the Isle of Man by Order in Council instead. Therefore, so far as this matter is concerned, we believe that we have covered all the angles.
I have taken a little time to reply because the noble Lord raised a serious issue.
On the basis of what I take to be as close to an undertaking as the Minister could possibly give that, were Manx legislation, for whatever reason, not to be implemented mirroring the orders applicable in the UK, the UK Government would exercise their powers as set out in the Bill, I beg leave to withdraw the amendment.
This is a very simple amendment which I believe is self-explanatory. Basically, its purpose is to ensure that consultation is carried out with relevant non-governmental and industrial organisations before the provisions of the schedule are modified. I believe that that would enhance the Bill and give interested parties—say, non-governmental organisations—that were particularly interested in the issues of sustainability prior warning of any proposed change. I beg to move.
This may appear an innocent little amendment but I consider it to be very important. The Minister has said how much he values listening and consulting in order to get things right. If that has been true in building up the Bill to its present level, any changes would require the same approach in the interests of ensuring that not only did we make a change but that we got it right. I believe that, not for the first time, the noble Lord, Lord Redesdale, is to be thanked for having made such a good point in his amendment.
Clause 11 provides for the Secretary of State to modify the schedule. The amendment would require consultations with NGOs and industrial organisations before any such modifications could be made. Of course, we appreciate the benefit of consulting generally, but we envisage that the schedule would be changed only when it was absolutely necessary to do so. Consultations could not determine such necessities. We want to resist the amendment and I shall explain why shortly.
The most significant point to make about changes to the schedule is that they can be made only by means of the draft affirmative resolution procedure under Clause 12(4). Our original proposal was for the delayed affirmative procedure, but we accepted the recommendations of the former Select Committee on Delegated Powers and Deregulation and changed it to the draft procedure. That is, of course, the tightest form of parliamentary scrutiny one can have.
We could not have gone further down that road. The draft affirmative procedure underlines the point that the schedule, as a fundamental part of the Bill, should only be modified, if at all, by the express approval of Parliament. Parliament must decide the matter.
However, as to the question of consultation, it is hard to believe that, when there is a draft affirmative resolution, some notice should not have been given of that fact and thus undoubtedly consultation would, in any event, take place. Anyone who has taken part in proceedings on the Bill cannot but fail to know that a great deal of attention has been paid to it by NGOs and also by industry. Such attention has been manifested by briefs, some better than others, which have been sent to noble Lords on all sides of the Chamber.
There is no danger in the real world that effectively there would not be consultation for something such as this. However, as far as I am aware there is no reason why the draft affirmative procedure should not allow parliamentarians the opportunity to consult informally with interested organisations about the proposed modification of the schedule, which does not require provision in primary legislation.
My final point is that as a country we have signed up to a number of the international export control regimes such as the Wassenaar arrangement and the International Missile Technology Control Regime. While those are not formal obligations of the kind covered by the schedule, but instead represent political commitments to countering the proliferation of weapons, we may wish to make changes to the schedule in response to agreements reached by such regimes. Meeting such international commitments is as important as any formal obligations under, say, the EU or UN and, just as in those cases, it would not be appropriate to subject our commitments to consultations.
I hope that the noble Lord will at least appreciate the arguments I make on that point. We argue that consultation in any other sense is not necessary; it would happen in any event. I invite the noble Lord to withdraw the amendment.
moved Amendment No. 66:
Page 7, line 5, at end insert—
"(2) An order under this section may make transitional provision in connection with any modification made by the order."
Amendment No. 66 is described as a technical amendment, which raises no new issues of policy. It puts beyond any doubt that any order modifying the schedule may also make any necessary transitional provision. For example, an order altering the schedule could affect the categories of goods or technology coming under control or the descriptions of goods or technology falling within particular defined terms. It might be necessary to provide transitional provisions clarifying that export licences issued under control orders drafted with reference to the earlier version of the schedule remained valid. I beg to move.
In moving Amendment No. 67 I shall speak also to Amendment No. 68. Both amendments relate to the parliamentary scrutiny of orders that are made under the Bill. In simple terms—indeed, in the very simplest terms—the amendments require all orders made under the Act to be subject to the affirmative resolution procedure rather than the negative procedure that the Government propose for certain of the provisions of the Bill.
As the Bill stands, all the Government are offering to be subject to the affirmative resolution procedure are orders made under Clause 5(2). Members of the Committee will recall that that clause contains the wide power which the Government seek to make orders for purposes not sanctioned by the schedule. In other words, in return for being given power to go beyond what Parliament is specifically sanctioning by the Bill in some unspecified way—as we have already debated in relation to Clause 5—the Government are offering to allow Parliament to have the right to vet such orders by the affirmative procedure. However, the orders which the Government are empowered to make under the Bill are wide ranging. They can have major effects on the defence industry, which accounts for 10 per cent of our industrial output, to say nothing of the effect that they will have on what the Bill calls "objects of cultural interest". In other words, they are orders which can affect our trade in art, where the UK is a leading international market.
The history of export control legislation is that it is of very long duration. As Members of the Committee will recall, the last major Bill on the subject was passed over 60 years ago. By this Bill we are sanctioning rule by secondary rather than primary legislation. It is beyond argument that the negative procedure is a lesser form of scrutiny than the affirmative resolution procedure. Considering the importance to our defence industry, our technological industry and to our art trade, and taking into account that orders made under the Bill could endure for a couple of generations—the last was for a very long time—it is not too much to ask that the legislation that the Secretary of State is putting into place should receive much closer scrutiny than the hit or miss negative procedure will allow for.
The honourable Member for Aberdeen North raised the matter before the Standing Committee in the other place in which he gave a most interesting explanation of the difference between affirmative and negative resolutions. I should like to anticipate the answers that the Minister may wish to give, following the line of the Parliamentary Under-Secretary of State for Trade and Industry in the other place. The Under-Secretary first said that the 1939 Act made no provision for parliamentary scrutiny of secondary legislation. I am not sufficiently versed in legal history to say what was the practice in 1939. I have made reference in my notes to what part of school I was in at that time, but I have decided to let that go. Now, two generations on from the previous Act, secondary legislation always does receive parliamentary scrutiny. The only question is what form such scrutiny should take.
I should like to remind Members of the Committee about three other aspects of the 1939 Act. First, it was not an enabling act to the extent that the present Bill is. Secondly, I am sure that the government of the day and, indeed, Parliament, did not anticipate that it would stay in force for 63 years. We have only to look at the title: Import, Export and Customs Powers (Defence) Act. Thirdly, it was part of the legislation intended to meet the world crisis that existed in 1939.
In those dangerous days, when there was a national emergency prevailing, Parliament was naturally prepared to cede almost unlimited powers to the Government. There is no such need for that today. The historical precedent of the 1939 Act has no relevance today. The Under-Secretary also advanced the argument that:
"Most orders to be made under the Bill for which the negative procedure is provided will be predominantly technical".
I hope that I am mistaken in interpreting that as suggesting that the orders might be too complicated for mere parliamentarians to understand. The more complicated the orders, the greater the need for detailed scrutiny, especially by those Members of the Committee whose experience and expertise makes them well versed in such matters.
The Under-Secretary also said:
"The most frequent need for amendment is as a result of changes to lists of items subject to control".
Even with the rapid changes in technology that we see these days, I really cannot accept that frequent changes in the orders will be needed. I have every confidence that the parliamentary draftsmen are skilled enough to draft orders sufficiently widely worded to anticipate reasonably foreseeable advances in technology. In any case, apart from the pressure on parliamentary time, the fact that changes will sometimes be needed because of changing circumstances is no reason why they should not be subject to the affirmative vetting procedure. On the contrary, it seems even more reason why they should be.
The Under-Secretary also claimed that it might be necessary to introduce specific controls under Clause 3(2) to deal with emergencies. He said that in such circumstances the Government will be required to act without delay. The Government have already provided themselves with powers to deal with emergency situations under Clause 5(2), which enables them to make time-limited orders, and which we discussed much earlier today. The Under-Secretary contended that positive resolutions were not necessary in respect of the record-keeping requirements. However, I venture to suggest that once they have been settled, they will be more or less permanent.
The Under-Secretary concluded by stating:
"The consequential loss of the affirmative resolution procedure in no way diminishes parliamentary scrutiny of orders under the Bill".—[Official Report, Commons Standing Committee B, 18/10/01; cols. 139 and 140.]
We fundamentally disagree with that statement as a matter of general principle. There is definitely a difference between affirmative and negative legislation.
The honourable Member for Aberdeen North was persuaded by the Under-Secretary of State to withdraw his amendment. However, as I have indicated, I am not convinced by the Government's arguments, which is why I tabled the amendment again. I should like to see whether the noble Lord can provide us with more persuasive arguments than those of his colleague in the other place. I beg to move.
The effect of these two amendments is to subject control orders made under Clauses 1, 2, 3 and 4 of the Bill to parliamentary scrutiny by the affirmative, rather than the negative, resolution procedure. That seems appropriate for Section 5(2) but not for Clauses 1, 2, 3 and 4.
Members of the Committee will be aware that the Bill provides for different scrutiny provisions for different kinds of order. That appropriately reflects the distinction between orders that can change the reasons for which export controls can be imposed and orders that set out the details of those controls. Where the fundamental purposes of export control are concerned, the Bill properly provides for the affirmative resolution procedure to apply. It is right that the Government should not be able to change the reasons for which controls may be imposed, or to introduce emergency orders that fall outwith those reasons, without the express consent of Parliament.
The Government believe, however, that scrutiny of orders which simply set out the details of controls, and which must always operate within the reasons set out in the schedule, is best achieved by means of the negative resolution procedure. Such orders will frequently be of a technical nature. That is perfectly understandable to Members of this Chamber, but they may not want to spend a great deal of time talking about them; for example, amendments to orders resulting from changes to lists of items subject to control. Those changes are usually a result of alterations to the international export control regimes upon which many of our export controls are based, such as the missile technology control regime. The Government believe that the negative resolution procedure is best suited for orders of that kind.
The Government recognise, however, that Parliament quite properly has an interest in the controls to be introduced by Clauses 1 to 4 of the Bill. That is why in October we published dummy draft orders which set out the details of new controls which allow Parliament to see how the Government propose to use the powers in the Bill. Additionally, the Government have announced that they will be holding a full public consultation on draft secondary legislation before the new controls are introduced. That will provide a further opportunity for all those with an interest to consider and comment on the new controls that are to be introduced. In that way, I think that we have the proper position on affirmative orders in the Bill. In view of that, I would welcome the noble Baroness withdrawing the amendment.
I think that in an enabling Bill it is more appropriate to have positive rather than negative resolutions. Therefore, clearly I am disappointed by what the noble Lord has said. I was interested in his views that everything is probably technical and that many noble Lords would not want to spend time debating such matters. That is absolutely true. But then of course they would not have to. It would be left to those noble Lords who are interested in scrutinising them carefully to do so. I do not think that that is a reason against having the provision. However, at this stage in the evening, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
Clause 12 agreed to.
Clauses 13 and 14 agreed to.
Clause 15 [Short title, etc]:
[Amendments Nos. 69 to 70A not moved.]
[Amendment No. 71 had been withdrawn from the Marshalled List.]
Clause 15 agreed to.
Schedule [Purposes for making control orders]:
moved Amendment No. 72:
Page 9, leave out lines 3 to 10.
On Question, amendment agreed to.
[Amendment No. 73 had been withdrawn from the Marshalled List.]
moved Amendment No. 74:
Page 9, line 10, at end insert—
"1 (1) Export controls and trade controls may be imposed in relation to—
(a) military equipment;
(b) goods on which military technology is recorded or from which it can be derived;
(c) equipment intended, designed or adapted for use in the development or production of military equipment.
(2) Transfer controls may be imposed in relation to military technology.
(3) Technical assistance controls may be imposed in relation to any services connected with the development, production or use of—
(a) military equipment;
(b) military technology; or
(c) equipment falling within sub-paragraph (1)(c).
(4) In this paragraph (without prejudice to the generality of the terms)—
"military equipment" includes—
(a) firearms and other weapons (whether or not intended, designed or adapted for military use or in military use);
(b) goods intended, designed or adapted for military use (whether or not in military use); and
"military technology" includes technology intended, designed or adapted—
(a) for military use; or
(b) for use in connection with the development, production or use of military equipment or equipment falling within sub-paragraph (1)(c).
(5) For the purposes of sub-paragraph (4) the reference to firearms and other weapons includes a reference to—
(a) component parts of firearms or other weapons;
(b) accessories for use with firearms or other weapons; and
(c) ammunition, missiles or projectiles of any kind which are intended, designed or adapted for use with firearms or other weapons."
On Question, amendment agreed to.
moved Amendment No. 75:
Page 9, leave out lines 11 to 27 and insert—
"2 (1) Export controls may be imposed in relation to any goods the exportation or use of which is capable of having a relevant consequence.
(2) Transfer controls may be imposed in relation to any technology the transfer or use of which is capable of having such a consequence.
(3) Technical assistance controls may be imposed in relation to any technical assistance the provision or use of which is capable of having such a consequence.
(4) Trade controls may be imposed in relation to any goods the acquisition, disposal, movement or use of which is capable of having such a consequence."
moved Amendment No. 77:
Page 9, line 28, leave out "this Schedule" and insert "paragraph 2"
On Question, amendment agreed to.
Scattered through the schedule to the Bill are the recommendations of the Scott report as to the purposes,
"for which export controls may, subject to Parliamentary approbation, be imposed and used".
I believe that those purposes will be strengthened by adding the police service to its colleagues in the Armed Forces whose security deserves protection.
The police around the world are often in the forefront of the fight against terrorism, insurrection and public disorder. One often sees rioting, orchestrated by masked organisers standing well back from the police lines.
In Northern Ireland, the police have long been the target of IRA assassins; likewise, the Spanish police have been the target of ETA. These terrorist groups exchange intelligence and advice on how to carry out their murderous purposes and supply each other with material support in the form of arms and explosives.
Members of the United Kingdom police service, as well as members of overseas police services, deserve no less protection under the Bill than their colleagues in the Armed Forces. I hope that the Government agree and will accept the amendment. I beg to move.
The amendment seeks to include a reference to the police services under paragraph 7(2)(A)(b) of the schedule to the Bill. I shall not use the word "unnecessary". I shall say that it is "not required" or "does not add anything of value to the Bill", because I know that the noble Baroness does not like that word.
I am grateful to the noble Baroness for raising the issue as it gives me the opportunity to explain how, under the Bill, we would have the necessary powers to impose controls where this was judged necessary for the protection of members of our police forces both at home and abroad.
First, of course, the schedule, as amended, makes clear that the Government can impose controls in relation to any military equipment and technology. That will therefore ensure that all weapons and related equipment, which arguably are likely to pose the greatest threat to the police, can be controlled. There are also a number of other reasons for which controls could be imposed that would be relevant to protecting the safety of our police forces at home and abroad.
Paragraph E of the table to the schedule refers to the risk of acts of terrorism or serious crime being carried out anywhere in the world. That allows us, for example, to impose controls in relation to items which might be used for such purposes either abroad, or indeed where there was a risk of their being diverted from the intended end user and smuggled into the UK for use in terrorism or serious crime.
In addition, paragraph A of the table in the schedule provides that controls can be imposed where there is a risk of an adverse effect on national security. That allows controls to be imposed in relation to types of equipment or technology that poses a significant threat to the police forces in this country or those of other member states or friendly states.
Finally, under paragraph B of the table in the schedule we can impose controls to avoid risks of an adverse effect on peace, security or stability in any region of the world or within any country. Under paragraph D we can impose controls in relation to equipment or technology where there is a risk that it might be used for internal repression or breaches of human rights. These powers allow us to impose controls that would be relevant to the protection of any police officers of the UK, other member states or friendly countries working abroad.
So we believe that the Bill would allow us to impose controls on goods or technologies posing a specific threat to our police forces and those of other EU member states and other friendly countries, whether in the UK or abroad. But I remind Members of the Committee that even if we found that we needed to impose controls on particular items that posed a threat only to our police forces abroad and which we could not bring in under the schedule as drafted, we would have the power to introduce temporary controls—with Parliament's express approval—on goods and technologies that fall outside the categories permitted in Clause 5 and the schedule. In the longer term, we could add to the table in the schedule. We therefore believe that the Bill as drafted gives the Government the necessary powers to impose controls where that might be needed to protect the police. I therefore invite the noble Baroness to withdraw the amendment.
moved Amendment No. 79:
Page 10, line 16, at end insert—
:TITLE3:"Economic capacity and sustainable development
F An adverse effect on—
(a) the economic capacity; or
(b) the sustainable development of the country to which the goods were exported, or the technology was transferred."
I speak to Amendment No. 79 standing in my name and that of my noble friend Lord Razzall. The Government have made a series of complicated amendments to address the concerns raised regarding the status of sustainable development. However, this simple amendment to include the reference to "sustainable development" in the schedule would have been sufficient.
The Government have never answered the straightforward questions as to why a reference to "sustainable development" was included in the draft Bill but removed when the Bill was presented to Parliament. The Government have presented a number of arguments stating that the role of the schedule now relates solely to defining equipment to be controlled. The Government have argued that that has always been the case but as mentioned during discussion of earlier government amendments that was certainly not the impression given by Ministers in oral evidence to the Quadripartite Committee, or in briefing material on the Bill.
One issue remains to be addressed. An export or transfer order can be made only for a purpose elaborated in the schedule, therefore excluding sustainable development from the schedule means that an order could not be made for that purpose. Our advice states:
"However much other matters have to be taken into account, they cannot justify making an order for a purpose which is not listed on the Schedule".
That means that it would not be possible to introduce specific secondary legislation under the Bill in order more tightly to control exports that could hamper sustainable development, whereas the Government could introduce orders laying out a more detailed definition of what constitutes internal repression, for example. It is important not to restrict the powers of future secretaries of state in that way. For example, secondary legislation could be useful to provide a more detailed definition of sustainable development. We believe that there is no legal reason why the provision could not be added to the schedule and we hope that the government will accept that. I beg to move.
It is late, and fortunately some of the things that I was going to say have already been said. I still want to add a voice of thanks to the Government for taking sustainable development seriously as a principle, but we remain concerned about the weight to be given to sustainable development and whether it will be mandatory.
Accepting the amendment and making sustainable development one of the relevant consequences in the table schedule would, as the noble Lord, Lord Redesdale, said, send a clear signal. It would be an obvious way to set out the facts if we were to include it in the table. The simple amendment is unambiguous and transparent and would be sufficient to satisfy many of our concerns.
Sustainable development is such a significant criterion because of the quantitative dimension that comes into play when we think about export sales. In the case of large weapons platforms, whether aircraft carriers or fighter planes, the intrinsic expense can prove problematic, as we have seen in the case of Tanzania. Alternatively, a similar situation can arise with lower cost items when purchases are on a large scale.
But there is more to such sales than those who arrange the finance, those who license such exports and the government of the country to which such goods are exported. Many Members of the Committee will be aware that in the debate about cancelling the debts of the poorest countries, attention is now given to poverty reduction strategy papers. Each country applying for debt relief must set out how it will organise its internal affairs, structure its economy and plan its spending so that the resources made available through loans and debt remittance can benefit the poorest.
At least three parties must be involved: the government of the country concerned; the external funders such as the World Bank and wealthy nations; and, thirdly, civil society represented by local non-governmental organisations, people in local organisations and voluntary groups right down to the grass roots. That is a very different scenario from the World Bank or similar bodies imposing policies on the grounds that they know best and very different from private and secret deals between external powers and the government of the day in a heavily indebted nation.
I return to the case of Tanzania. The Tanzania Association of NGOs has been shocked to learn that its government have committed the nation to an additional 40 million dollars of commercial debt in addition to their existing unsustainable debt, bearing in mind the work that still needs to be done to educate the poorest in that country. It seems to those in Tanzanian civil society who are aware of what is going on that that act is inconsistent with the United Kingdom Government's own international aid, debt relief and sustainable development policies. It is ironic that we in the United Kingdom may be giving vital budgetary support for debt relief with one hand and taking it back with the other.
I said on the Bill's first day in Committee, citing the right reverend Prelate the Bishop of Lichfield in earlier debates, that there needs to be a moral presumption against arms sales unless the case for a particular transfer can be proven. Tonight, I go a stage further. There needs to be a moral presumption in favour of poverty reduction, sustainable development and the enabling of human flourishing—what is known in another place as joined-up thinking. There is a moral imperative to help to shape the world so that all can live in what is now a small globe in justice and peace.
The Secretary of State for International Development, citing recent figures—some of them familiar to us, but we need to continue to absorb them—said that one in five of the world's population, two-thirds of them women, live in extreme poverty on less than a dollar a day. About 150 million children are underweight, which is a severe risk to their physical and mental development. More than 36 million people worldwide are infected with HIV; 130 million children have never been to school.
If we call ourselves civilised, we will want to contribute significantly to world development by ensuring that not simply charitable, voluntary work but our economy, our legislation and our politics are conducted in such a way as to enable global human flourishing. I was not able to be present—perhaps some Members of the Committee were—but I am aware that a few days ago, on 26th February, I think, here in Westminster, the Chancellor of the Exchequer and the Secretary of State for International Development convened a meeting at which the United Nations Millennium Development Goals were endorsed by representatives of the governments of Africa, Latin America, Europe, the Pacific Rim and North America, together with leaders of the United Nations bodies, the World Bank, the International Monetary Fund and development agencies.
I say all that because I want clearly to lay down not only the need for sustainable development but the huge international pressure that we might work together for debt relief, the reduction of poverty and, indeed, sustainable development. The amendment offers a way to ensure unambiguously that it is a mandatory element of the Bill—not simply on the face of the Bill but a mandatory element of its table—to ensure that the economic capacity and sustainable development of the country to which goods are to be exported or technology transferred are taken into account in the process of deciding the illegitimacy or otherwise of such exports. We have already heard from the noble Earl, Lord Sandwich, about the proposed sale of Hawk aircraft to India. I shall not repeat the figures, but simply say that alongside the obvious security concerns of allowing that sale to proceed are, as the noble Earl reminded us, serious developmental concerns.
The question raised by the noble Lord, Lord Redesdale, stands. If there is no reference in the table in the schedule to the whole question of sustainable development, does that exclusion mean that it will be possible to argue that an order cannot be made for that purpose? I have also consulted lawyers and I am advised that there is no justification at law, however much other matters have to be taken into account, for making an order for a purpose not listed in the schedule. A lawyer could argue that it could not be taken into account. I need to be assured by the Government that if sustainable development is not listed in the schedule, it will—not can but will—be taken into account as a mandatory requirement.
I take some interest in urban areas in England, and I find it strange that a Government that could in May 1999 produce a sensible and coherent strategy for a better quality of life and sustainable development for the United Kingdom are now so shy and coy about doing so on a global scale. The reason that I cited the case of Tanzania and the involvement of civil society is that that removes from us the sense that we cannot make decisions that involve other people—that when we are talking to other governments it must be their decision on their own. It will seem strange to many people, not only in the United Kingdom but internationally, if we are so coy about the matter.
We must make sustainable development a mandatory requirement for consideration, which is why I support the amendment to include it in the table.
I must say to the right reverend Prelate the Bishop of Manchester that something that is on the face of the Bill is mandatory. I should explain the context because there has been great confusion about this matter throughout the passage of the Bill and we now have the position clear.
The Bill does two things. First, it defines the categories of goods that can be controlled. That is what the schedule is about, and it is mainly about setting out the military equipment that can be controlled and equipment the export of which has relevant consequences with regard to terrorism and so on. We do not believe that sustainable development should be on the list because we do not think that we should put in the category of goods that should be controlled goods that are simply defined by the fact that they could have an effect on sustainability. That would lead to a massive extension of the powers of the Government in this matter. It would also be an impossible task: we would have to control practically everything because it could have an effect on sustainability. That would be difficult.
"An adverse effect on peace, security or stability"?
Why is it in a different league from that? The logic of the point that the Minister has just made is that we should remove item B as well. I am all for item B being there; it seems to me that the proposed item F should be there too.
We resist the amendment for exactly the reasons that I have just given. We believe that we should control military equipment and items that can lead to repression or be used in terrorism; we do not believe that we should seek to control goods in a category that would be difficult to define and absolutely vast, including any products, goods or services that could have an impact on sustainability. That has been our consistent policy throughout: we should not seek to control all those items but, in controlling the items specified in the schedule table, we 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.
My noble friend the Minister is being considerate and helpful, as he has been throughout the Committee stage. However, this is an important point: what the Minister has just said seems to suggest that, in the mind of the Government, there is no connection between sustainable development and peace and stability. The House has debated that quite a lot of late, not just in Committee, and there is a view that we should do things about development because it would be right, not because it is in the interests of peace and security.
It is not either/or; we should do it because it is right and is demanded of us ethically and morally. After a lifetime working in that area, I am convinced that the battle for security and stability in the world is a battle for hearts and minds. That is related to sustainable development. If one part is to be retained in the schedule, it would be helpful to have the other, for the same reason.
I do not totally disagree with that argument, but we must be clear that, if we were to include that category, we would effectively include export controls on practically every category of goods that leaves these shores. We would certainly have to include agriculture, construction and energy equipment and consumer goods. It would not be practically possible to operate a system that would do that, leaving aside the almost impossible decisions that would have to be taken as to whether goods in those categories would affect sustainability. I am not certain how we could make sensible judgments about that.
We believe that it would be wrong to put sustainable development in the schedule. It would empower the Government to impose controls on almost any type of goods or technology, as almost all exports of goods or technology have the capacity to have an effect on the sustainable development of the recipient countries. It would also run completely contrary to the recommendations in the Scott report, in which the noble and learned Lord, Lord Scott of Foscote, deplored the fact that, under the Import, Export and Customs Powers (Defence) Act 1939, the power to impose export controls was not restricted.
We believe that, when we are considering the export of goods that are controlled by the schedule table, it is important that sustainable development should be included as a criterion. We have made it clear that it is a mandatory requirement. That is why we have made the amendments to the Bill that we have made. I hope that that makes clear the Government's continuing commitment to sustainable development in the licensing process. However, it is not right that it should go into the schedule, and we hope that the noble Lord will withdraw the amendment.
I thank the Minister for that reply, but I am still uncertain whether he answered the question why the Bill originally had sustainability in the schedule, only for it to be removed. I take the point made by the right reverend Prelate the Bishop of Winchester that peace and security are in the schedule at item B. I also agree with the noble Lord, Lord Judd, that sustainability must be based on peace, stability and the eradication of poverty. That is an important point.
I will not be able to change the Minister's mind at this late stage. He set out clearly the Government's thinking on the amendment. With the caveat that we may well bring the matter back at a later stage, I beg leave to withdraw the amendment.
moved Amendments Nos. 80 and 81:
Page 10, line 16, at end insert—
"( ) The question whether an activity involving goods, technology or technical assistance of any particular description is capable of having a relevant consequence is to be determined by the Secretary of State at the time the order imposing the controls is made."
Page 10, line 22, leave out from beginning to "objects" in line 23 and insert "Export controls may be imposed in relation to"
On Question, amendments agreed to.
[Amendment No. 82 not moved.]
Schedule, as amended, agreed to.
[Amendment No. 83 not moved.]
Title agreed to.
House resumed: Bill reported with amendments.