I beg to move Amendment No. 11, in page 2, line 33, leave out subsection (2).

The amendment takes us to the heart of the argument about democratic control and accountability of the export control procedure. This is a procedurally complicated area, and I suspect that even those of us who are involved in the debate are struggling to understand its complexities. It may help if I set out my understanding of the hierarchy of permissions and authorisations that will operate once the legislation has come into force.

There are essentially four types of approval mechanism. First, there is the most demanding type—the prior approval involved in the affirmative resolution procedure, which will apply to changes in the purposes for making an arms control order specified in the schedule. That process clearly requires the full involvement of Parliament. Secondly, there is the deferred affirmative procedure, which will apply to temporary orders. That, essentially, is what we are concerned about with regard to the Clause. Thirdly, there is the negative resolution procedure, which applies to changes that the Government consider to be more minor, but may well involve important considerations. Lastly, there is the informing of Parliament of very small technical changes.

We acknowledge that some distinction must be made between different export controls. A one-size-fits-all procedure is not appropriate. We recognise that there is a role for prior approval—for which we must argue strongly in many cases—and for a routine procedure, which is set out in clause 8 and which would be the least demanding. We suggest that the two intermediate stages be eliminated.

On later clauses, we shall debate upgrading the negative procedure so that Parliament has proper prior scrutiny. I do not want to trespass on that subject, but I shall focus on the second stage in the hierarchy of procedures—the temporary orders. There are two problems with the temporary order procedure in the Bill, and the Quadripartite Committee dealt explicitly and somewhat critically with one of them. Two sentences from the Committee's report, ``Draft Export Control and Non-Proliferation Bill'' are relevant and capture the essence. Paragraph 45 states:

``The draft Bill makes provision at Clause 3(2)''— with which we are dealing—

``for Orders which are not subject to the purposes set out in the Schedule. They are to be subject to modified affirmative procedure''.

The report then refers to the House of Lords Committee that considered the regulation procedures and

``expressed its concern over Clause 3(2), finding it not `right in principle and therefore appropriate to delegate a power to impose controls for purposes which are not set out in this Bill . . . The Committee does not at present consider that a restriction on the freedom to trade should be granted in such wide terms'.''

The Quadripartite Committee clearly and explicitly endorsed the criticism that there were not sufficiently good grounds for providing temporary orders that operated according to different rules.

The second set of criticisms relate to the fact that it is possible to envisage perfectly plausible circumstances in which there may be no parliamentary scrutiny whatever under the clause. If the order applied for fewer than 40 days, there would be no need for parliamentary scrutiny. Substantial and substantive changes in the export control procedure could simply be pushed through with no reference to Parliament. That relates partly to the time factor, and the Quadripartite Committee again focused on the problem, saying that

``the 40 day period of grace allowed before such an Order lapses unless parliamentary approval is given . . . seems to us too generous''.

In other words, the provision gives Ministers too much power to put through orders that have far-reaching implications without parliamentary scrutiny. The Committee suggested substantially reducing the period of 40 days.

The purpose of the amendment is to take out that second stage in the parliamentary scrutiny process to eliminate any ambiguity. The amendment is entirely in the spirit of the comments made by the Quadripartite Committee, to which members of all parties signed up. It is a building block that we can use to build stronger parliamentary scrutiny into the Bill.

The Amendment, which would delete subsection (2), would prevent the Government from imposing temporary export controls by order for purposes that fell outwith those contained in the schedule.

The purpose of subsection (2) is to allow the Government to respond to emergency situations by imposing controls that, exceptionally, do not or might not fall clearly within the proposals set out in the schedule, where the need for such controls is likely to be short term. An amendment to the schedule of purposes is therefore not warranted.

Although we do not anticipate needing to use the power, there is a strong case for retaining it. By definition, the controls involved will be of a kind and needed for a reason that we cannot foresee, so it is not easy to give an example. However, we continue to believe that it is only prudent to take the power, although we also consider it right that it should be subject to Parliament's express approval. As a result, we have imposed a requirement that any orders made for reasons that fall wholly or partly outwith the purposes must be approved by Parliament by the affirmative resolution procedure. That means that any orders made under the subsection would cease to have effect if not approved by both Houses of Parliament before the end of a 30-day period. Moreover, such an order could not remain in force longer than 12 months unless approved again by Parliament under the affirmative resolution procedure.

I remind hon. Members that the power would have to be exercised in a manner consistent with European Community law. The likely effect would be to confirm its use in national emergencies. The published draft of the Bill proposed that the purposes for which export controls could be exercised could be amended by an order subject to delayed affirmative action. The Select Committee on Delegated Powers and Deregulation in Another place recommended that such a power should be exercisable under the draft affirmative procedure rather than the delayed affirmative procedure. In view of that recommendation and the fact that the procedure set out in Clause 3(2) would be available in an emergency to permit control of exports outside the purposes listed in the schedule, the Bill has been altered. Clause 12(2) now provides for purposes to be amended under the draft affirmative procedure. In addition, orders made under clause 6(1), to require information, are now subject to the affirmative procedure.

I hope that I have demonstrated that we have listened to representations about the draft, and that we have strengthened the Bill after taking the advice in those representations. The use of affirmative resolution procedures would give Parliament an appropriate degree of scrutiny of orders made under the subsection, and I hope that the hon. Member for Twickenham will be willing to withdraw the amendment.

Before the hon. Member for Twickenham responds, will the Minister explain how the operational details for the handling of export licences would fit into the framework? Concern has been expressed about the delay in dealing with export licence applications. The target times have been exceeded. How will the two aspects of the matter fit together? Following an application for a licence, how far would the resolutions that the Minister has outlined cover the process, and how much of it would be a matter of the Department's ordinary handling of the timetable?

There would not necessarily have to be a licence application. If it was decided that the UK would unilaterally impose an embargo in response to an emergency somewhere in the world, details of that would be circulated. Any subsequent application for a licence would be measured against that. Clause 3(2) is intended to allow for the application of the Bill to unanticipated cases, enabling the Secretary of State to take appropriate action in possibly highly unusual circumstances. All such actions would be reported to Parliament and subject to Parliament's express approval under the resolution procedure.

I understand that unforeseen circumstances arise, but the subsection would create a potentially very large loophole enabling parliamentary scrutiny to be relaxed. The Minister says that there may be national emergencies. Most hon. Members are patriotic, and if there is such an emergency they will respond quickly. There is no reason why the prior scrutiny requirement of Parliament should create an obstacle to that. Equally, if the purposes defined in the schedule prove inappropriate, procedure under Clause 11 allows them to be changed. The legislation provides some flexibility so, with the good will of hon. Members, there is no reason why affirmative action should represent an obstruction.

I do not propose to press the Amendment, but I ask the Minister to consider the time period as he moves some way towards those who are unhappy about the clause. The Quadripartite Committee asked about it and unforeseen circumstances. The Committee was generous about accepting the Minister's good will, but said that the 40 days should be cut down substantially. It said that so that parliamentary prerogative would be preserved, and to ensure that the period could not be used to abuse Parliament and rush through large numbers of exemptions from parliamentary scrutiny. I ask the Minister to have a fresh think about the time period, even if he does not have one on the principle.

Our response to the Quadripartite Committee's recommendations is clear. We considered them closely and noted them, but are not persuaded that there should be a shorter period in which orders remain in force before they are subject to parliamentary approval. Should that become necessary in circumstances that I have said are difficult to outline, we will know by example whether we have been vindicated. I believe that we will be vindicated on that time scale.

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment No. 37, in page 2, line 39, leave out subsections (3) and (4).

I shall re-state the obvious. The ostensible purpose of the Bill is to introduce a new system of controls on the export of arms, to replace one essentially based on the Import, Export and Customs Powers (Defence) Act 1939. That is how the Bill has been represented—perhaps I should say sold—to the House and the country. The speeches on Second Reading by the Secretary of State for Trade and Industry and the Minister offered ample proof of that. As has been mentioned more than once, the 1939 Act has served us rather well. I do not know whether it is the longest serving Act, but it must be somewhere near the top 20.

I want to tease out from the Minister how he envisages the provisions working. Subsections (3) and (4), which my amendment would delete, make it apparent that the much trumpeted purposes for which orders can be made under clauses 1 and 2, as listed in the schedule, allow orders that revoke or amend an earlier order or re-enact provisions with or without modifications to be made outside the purposes permitted in the schedule. The schedule's provisions have to be taken into account only if such orders strengthen existing controls or impose controls on goods or technology previously not subject to controls. The Committee will recognise the fact that there could be concern about that.

The conclusion must be that the House is being invited to allow existing orders to be amended or re-enacted without being subjected to the provisions of the schedule, unless the controls are being strengthened or extended. It is working on the assumption that everything is fine as it is and need not be changed.

The question that inevitably arises is whether the Government envisage more than one system of export control. The amendment has the merit of seeking to ensure that our manufacturing companies apply one set of criteria, rather than combining the old and the new. The Minister should explain why the hotch-potch that has been proposed is better than the case that was put forward in principle for the new controls. However, the proposals in this Clause are belied.

The deletion of subsections (3) and (4) would have the effect of the purposes in the schedule applying to orders or provisions in orders made under clauses 1 or 2 that simply revoked, amended without strengthening, or re-enacted controls without modification.

The purpose of the subsections is to ensure that while the purposes must apply for the imposition of any new or strengthened controls, no doubt must be cast on the legal validity of controls simply as a result of a re-enactment of controls or technical changes in an order. The most frequent reason for changes to be made to export control orders at present is to reflect changes agreed to the control lists in the international export control regimes, such as the Wassenaar arrangement, missile technology control regime and nuclear suppliers group. There will inevitably be some time lag before such changes are carried through into national legislation.

The subsections are included for the avoidance of doubt, to make it absolutely clear that any decision by, for example, the international regimes to remove a particular item from their control lists—which might be considered to remove the main purpose for which the controls were originally enacted in orders—could not throw doubt on the legal validity of the secondary legislation under the Bill. I am sure that the Committee will recognise that controls in secondary legislation that have been validly introduced under the purposes should not subsequently be challenged, as that would undermine our export control regime. I hope that that satisfies the hon. Gentleman and I urge him to withdraw the Amendment.

Although I am grateful for that answer, I have ended up even more confused than I started. I suspect that if the Minister had to start again, he would end up even more confused. He has not reassured me; he seems to be confirming that we shall be operating two systems. That worries me. In view of his response, I should like—when this is recorded in tablets of stone via Hansard—to take it away to study. I might return later, if possible, to take a second bite at the cherry. As it stands at the moment, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

I beg to move Amendment No. 12, in page 3, line 20, leave out `or 2(1)' and insert `2(1), 4(1) or 5(1)'.

With this we may discuss the following amendments: No. 13, in page 3, line 21, leave out `or transfer controls' and insert

`, transfer controls, controls on the provision of technical assistance overseas or trade controls'.

No. 28, in the schedule, page 9, line 3, leave out `or transfer controls' and insert

`, transfer controls, controls on the provision of technical assistance or trade controls'.

No. 45, in the schedule, page 9, line 14, leave out `or'.

No. 46, in the schedule, page 9, line 14, after `which is,', insert

`the provision of technical assistance overseas which is, or the trade in controlled goods which are'.

No. 47, in the schedule, page 9, line 26, at end insert—

`(4A) This paragraph applies to the provision of technical assistance overseas of any description if it appears to the Secretary of State when the order is made that there is a risk of the provision of technical assistance overseas of that description might have any of the consequences mentioned in the following table.

(4B) This paragraph applies to the trade in controlled goods of any description if it appears to the Secretary of State when the order is made that there is a risk that the trade in controlled goods of that description might have any of the consequences mentioned in the following table.

(4C) The reference in sub-paragraph 4(B) to consequences of the trade in controlled goods includes a reference to consequences relating to the use of information recorded on or derived from the goods.'.

On the surface, this appears to be a complicated group of amendments; in fact, I have wrestled with them for a while. Our worry is that we are not covering a broad enough area. Therefore, the amendments add controls on the provision of technical assistance overseas and trade controls to the export controls and transport controls that are already stated. The purpose is to broaden the scope of the Bill. To see the point of it, we should look at the schedule. That is why amendments Nos. 45, 46 and 47 are amendments to the schedule, which also refers to the transfer of technical assistance and controls on trading in controlled goods.

Many speeches have been made on the transfer of technical assistance. It is an important matter, and it should not be swept under the carpet. I feel most strongly about the fact that the controls on trade in controlled goods have been omitted from Clause 3 and the schedule, because they refer to my old friends brokering and trafficking. As Shadow Secretary of State for International Development, I have seen evidence of the damage that the brokering and trafficking of arms causes in developing countries.

I want the changes to clause 3 and to the schedule of purposes to be considered together. They should include controls on the provision of technical assistance and on the trade in controlled goods. If they are omitted, the Government will be able to introduce more limited controls in secondary legislation—which we have not yet seen.

Although the orders imposing controls on the export of controlled goods from the United Kingdom and on the transfer of technology will be made for the purposes set out in the schedule, the Secretary of State will be at liberty to decide for what purpose controls will be introduced on brokering and the provision of technical assistance. The amendments aim to broaden the scope of the Bill and to tighten it. We fear that one of the Government's reasons for delaying the secondary legislation might be to make the purposes of the Bill more woolly than most of us would like.

I believe that the amendments have been tabled with the intention of ensuring that orders made under Clause 4 on controls on the provision of technical assistance overseas and clause 5 on trade in controlled goods may be made only in accordance with the purposes set out in the schedule. The Government are so far in agreement with the hon. Member for Richmond Park that we have already ensured that the Bill requires that orders made under clauses 4 and 5 may be made only in accordance with purposes set out in the schedule. However, I fully appreciate the complexity of the Bill, and I should like to explain the position.

Clause 3 does not apply to orders made under clauses 4 or 5 that cover technical assistance and overseas trade in controlled goods, because those clauses provide that controls can be imposed only in relation to goods or technologies that are themselves subject to control under clauses 1 or 2. I draw the Committee's attention to clause 10 (2) to (5), which expand the meanings of controlled goods and controlled technology for the purposes of clauses 4 and 5. Since goods or technologies can be made subject to control only under clauses 1 or 2 for the purposes set out in the schedule, it follows that the controls set out in clauses 4 and 5 can, in effect, be imposed only for the purposes listed in the schedule.

It might help if I quote from the Select Committee on Delegated Powers and Deregulation in Another place on 25 April. Although that comment was made about the earlier draft of the Bill, the point that the Committee made still holds good. In paragraph 15 of the report, the Committee said of the powers in clause 4 that

``Clause 3 does not apply. This appears to allow the power to be used for any purposes but this is not the case.''

The report goes on to say that the definition of technical assistance limits the power to matters connected with controlled goods or controlled technology, saying that

``these terms are defined . . . as goods subject to controls under clause 1 and technology subject to controls under . . . clause 2.''

Controls under clauses 1 and 2 are either imposed for the purpose in the schedule or are temporary controls under clause 3(2). A similar limitation applies to controls under clause 4. Given that the controls under clauses 4 and 5 are limited and can be imposed only in relation to goods or technologies that are, when exported or transferred, themselves subject to control under clauses 1 or 2, the amendments tabled by the hon. Members for Richmond Park and for Twickenham are no longer necessary. Moreover, the schedule is constructed on the understanding that, for all the reasons that I outlined, it need apply only to orders that impose export controls or transfer controls. The amendments would, therefore, require unnecessary and extensive revisions to the schedule and other parts of the Bill.

For all the reasons that I have given, I hope that hon. Members will not press the amendments that I listed.

May I pursue the Minister a little? For those of us who are not constitutional lawyers, the issue is a bit of quagmire. Our understanding of the Clause is that the Minister can dilute the controls for technical assistance or brokerage. The export of goods is provided for under the schedule, but the Minister could apply a much looser regime to technical assistance if he was so minded. I want to be clear that we have understood that correctly, because the Amendment is designed to rectify that omission.

I should say a little about why the issue is important. If the Minister is a Minister of good will who is determined to stop the export of unacceptable technical assistance to unfriendly and oppressive regimes—I am sure that that is his motivation—the issue is not a problem. However, a Minister who is otherwise minded could use the provisions differently. Let me give an example from my own experience, on which I drew on Second Reading.

In the mid 1970s, the Samosa regime in Nicaragua faced disturbances and the beginnings of the Sandinista uprising. The Labour Government of the time faced the issue of how to deal with the regime. Clearly, there was a reluctance to supply Samosa with weapons. However, a request came from the Nicaraguan authorities for the President's son to have military training in this country—he was to go to Sandhurst to make friends and contacts. The request went through, partly because it was seen as much easier to wave through a bit of technical assistance than it would have been to wave through equipment. One can see that the relevant provisions could be abused under a Government who wanted to treat fairly benignly overseas Governments who were perhaps questionable.

At the heart of the amendment is the issue of how we treat knowledge. If we go back to the Scott report, we find that the supergun was just a pipe, which is a completely useless piece of equipment unless it is accompanied by knowledge and transfer technology, which are more crucial. If legislation is laxer in its treatment of the transfer of knowledge than it is in its treatment of equipment, it is defective. According to one phrase, knowledge is sticky, tricky and leaky. Once one hands it over, it sticks and one cannot get it back again. If one hands over a piece of equipment, one can retrieve it and destroy it, but one cannot destroy knowledge. Knowledge is also tricky because it can be manipulated and developed, and it is leaky because it is easy to pass on. The control of knowledge and technology, which is what technical assistance is about, is, in many respects, much more crucial to arms export control than is the control of equipment per se. That is why we want to understand why the Government have such difficulty with our amendments. As we understand it, we are merely trying to upgrade the level of control over technical assistance and brokerage to the level that currently applies to equipment.

Subsection (2) is intended to limit the range of goods or technologies that could be included in orders. The hon. Gentleman is right to say that it gives discretion to the Secretary of State to vary the orders. The controls under clauses 4 and 5 are subject to negative procedure and any change is fully reported in the annual report, which the Committee will consider later in its proceedings. None of that can be done and kept secret. It is likely to be the subject of public discussion and comment, and any Secretary of State would have to consider that.

I am sorry to intervene again, but I still do not understand—I find the subject very difficult—why paragraph 1 of the schedule mentions only export controls and transfer controls. Why are the other things, such as the transfer of technology and controlled goods, not mentioned? Why are only those two included?

The transfer of technology is dealt with in Clause 4, which we will shortly consider.

Yes, but why are such matters not included in the schedule? I appreciate that they are mentioned in the Bill, but they are not mentioned in the schedule, which makes one suspicious that there is a dark agenda somewhere.

I can assure the hon. Lady and the Committee that there is a perfectly legitimate explanation. It is not necessary to list them in the schedule.

We are a little baffled by the procedural complexities in this area. There is no point in our proposing an Amendment unless we have clarified the matter. We may well refer to the matter when the Bill is discussed on the Floor. There are some important issues of principle hidden away in the procedures, but we do not wish to press the amendments.

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Pearson.]

Adjourned accordingly at nineteen minutes to One o'clock till this day at half-past Four o'clock.