Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witness (Questions 260 - 279)



  260. We have had some blood curdling thoughts that you would bring academic research to a halt in certain fields.
  (Mr Byers) We certainly do not want to do that, Chairman. I am sure that we can have provisions either on the face of the Bill or as it goes through its parliamentary process to make sure that those concerns can be addressed.

  261. The other area is the area of technical assistance. This is paragraph 47 of the paper, page 14, which deals with the issue. I was rather surprised in this paragraph, when I read it, that in fact technical assistance in situations where there were embargoes, UN embargoes, was not illegal.
  (Mr Byers) No, that is true. I agree. We are consulting on the steps that should now be taken.

  262. I see. So the UN embargoes and these international embargoes do not actually catch technical assistance?
  (Mr Byers) They can do but they do not automatically. It depends very much on the way the embargo is worded and what is actually caught by it. You can have an embargo which specifically covers technical assistance but if you do not do that then it will not be covered.

Dr Godman

  263. In the latter case what would happen if, say, a company were providing technical assistance to a regime which then had imposed against it a UN embargo? What would be that company's position or the position of someone giving technical assistance overtaken by the imposition of an embargo or sanctions of one kind or another?
  (Mr Byers) The general difficulty is that when an agreement is in place, which is already there in being certainly in terms of export controls, once again we are back to the provision that we were talking about earlier. The introduction of an embargo may affect the contractual relationship.


  264. You might like to look at the evidence given to us by Rolls Royce this morning rather than us pursue it as go-betweens. They did raise issues on the grounds of a level playing field and so forth. I have two outstanding issues. May I ask you with your lawyer's hat on, do you see as a result of a piece of legislation like this there will be more legal action, more judicial review? Once you have created this legislation do you think it will encourage judicial review in that it inculcates rights that people did not feel they had and therefore did not pursue which might now flow from a piece of legislation like this which does define people's rights.
  (Mr Byers) There is always that danger and we have to be conscious of that. There is now a greater climate, as we know, for people to bring judicial review proceedings anyway. That is always a danger but nevertheless I still think it is not a ground for not proceeding in the way we want to.

  265. Is it your intention that third parties will be able to challenge grants or refusals of licences?
  (Mr Byers) In terms of the process that we presently have, and indeed this will be the case under the Bill, it would be a question of the annual report making us accountable to Parliament for the decisions which are taken. If there is the introduction of prior parliamentary scrutiny, that could obviously change the way in which these things are dealt with, but I do not foresee in terms of challenging in a non-legalistic—

  266. For example, you quoted Amnesty to us, and we have been reading Amnesty's material. Would it be an intention that someone like Amnesty could challenge the grant or refusal of a licence?
  (Mr Byers) Challenge in terms of judicial review?

  267. Judicial review.
  (Mr Byers) Sorry, I misunderstood you, Chairman. I thought you meant once we had made a decision there was another non-legalistic route. My understanding is that there would be nothing to stop a third party, an NGO or even a defence manufacturer, to judicially review any of the decisions which are taken. They are perfectly entitled to do that. That applies at the moment. It may well be that with a greater degree of openness people can see what we are doing and there will be more scope for that. At the moment I am conscious that decisions I take on licensing applications can be subject to judicial review.

  268. Surprisingly few have been.
  (Mr Byers) It is because we do it so well!

  Mr Viggers: They require permission, of course.


  269. The one area we have turned our backs completely on, or certainly the White Paper has, is actually putting into any statutory form the administrative procedures dealing with appeals, refusals, or NLRs, "no licence required". They are rehearsed in the White Paper but this is an utter rejection of Scott's proposals. Why?
  (Mr Byers) I am not sure they are really necessary, Chairman. I think the procedures that we have introduced are ones that we are more than happy to explain to a Committee like this, and I think that is the best way of dealing with it. In terms of priorities and what we are trying to achieve here, I think those are probably second order, to say the most really. That is not being dismissive of what Scott proposed, but I do think that what we are trying to do here is to meet the very real priorities which are there, and I hope in terms of the draft Bill and the consultation we have been able to do that. It does build on the work of Scott but goes a lot further and, as Lord Scott said this afternoon in his evidence, time has moved on and I think that is true.

  270. Except what has not moved on is, and in all our Committees when we have reviewed licences and taken evidence on the operation of them, we still get issues of inordinate delays, decisions not made. We had evidence where the birthday card for the third year of a non-decision on a particular licence was quoted to us. Three years and no licence decision had been taken. We certainly have had evidence of very long, protracted cases. I think what Scott was after was to create some kind of spur to ensure these amazing protracted cases, which are becoming part of the legend, do not carry on, and they have been carrying on. That has not changed?
  (Mr Byers) They have improved somewhat but I know it is something where the Trade and Industry Select Committee monitors our performance, and we have a clear target now in terms of licences being approved within 20 days. The bulk actually come within that. However, there are some which we do discuss in detail and sometimes there is a valid reason for a long delay. If I can just say this to the Committee, there are some licences where I would much rather we took 18 months and got it right than did it in 18 days and got it wrong. The ones where there are delays is not because of administrative problems, it is because of getting intelligence, making sure we get the latest information from the companies concerned and then we take a decision. Some of them are very difficult, some of them involve the Foreign Secretary, the Defence Secretary and myself sitting down together and going through the individual application and deciding what our approach should be. That does take time.

  271. The burden of evidence we have taken is that in some ways companies would prefer an early refusal rather than approval after a protracted, agonising 18 months, by which time the order has come and gone.
  (Mr Byers) If it is a question of commercially having to meet the order within a timescale, we can advance and treat it almost on a fast track. I have to say they may say they would prefer an early refusal, but I do wonder if we got to that situation whether they would like a delayed approval. It would be interesting to know the final outcome there really.

  272. May I offer a practical suggestion to finish on, and this is not really within the Bill? I am puzzled when we get evidence of the kind we had this morning about the three year non-decision, the licence left in the process just to find out how long it is going to stay there before people within the administration notice it has not been dealt with. Could you conduct a one-off review of all long-standing outstanding licences and see if in fact these legendary stories are valid in any sense? It would be a useful thing to do if nothing else.
  (Mr Byers) In fact we already do that, Chairman, because I am concerned about the delays which do exist and we have changed the way in which this particular part of the Department operates. We have altered the way in which we can allow people to be promoted, so it becomes a place where more people are prepared now to go and work. We have invested in new computer provision and so on. So we are changing it and it has improved, but there is still a lot of ground to make up. In terms of the administrative proceedings, we are meeting now a far higher percentage within our target of 20 days. There are some which do take a long time because we are very careful about ensuring all of the information is available before we make a decision. What is not acceptable though, Chairman, is if it is purely for administrative reasons something is subject to a long delay. If there are policy considerations, that will take longer, but there is no excuse for 18 months, two years or three years. I was unaware of the three year one but that clearly is not acceptable.

Mr Rowe

  273. Our witnesses this morning did actually say that if there was an application on which you were likely to have difficulty, it would be very helpful to be told that. What happens at the moment, they said, is that it goes into a black hole and they do not hear anything. I would not have thought that would be terribly difficult to determine quite early, to say, "This is clearly one which is going to cause us some trouble". They were unanimous in saying they would like to be told if this was one which was likely to cause difficulty.
  (Mr Byers) I hope most of the applicants will know there are certain destinations where things will take longer. I do not know on the three year example which country the application was for but certainly in my experience with the ones which take longer you can list the seven or eight countries which are involved and where we do give them a lot of detailed scrutiny. So they should be aware that if they are making an application for particular countries, it is going to be difficult to meet the 20 day target.

  Mr Rowe: It would not do any harm to tell them that again, even if they had not picked it up.

Sir John Stanley

  274. Secretary of State, earlier this afternoon, as you know, we had Universities UK and we spent some time with them listening to their concerns about the application of the orders under the sections 1 and 2 procedure in relation to subjects which might be closely related to normal academic teaching in universities. The Committee is in some difficulty here because, as you know, the Bill is effectively silent as to what you actually intend and from what we have heard so far this would be a really key area where there is a need for consultation before your proposals are finalised.
  (Mr Byers) Yes.

  275. If we can go back to the only information we actually have, which is what you set out in your White Paper, which we read out when we saw Universities UK, you said in paragraph 3.2.3, "A possible solution to this would be to add a provision to the weapons of mass destruction related offences proposed in section 3.1 above making publication of controls technology relevant to the development of weapons of mass destruction an offence. This would apply whatever the medium of publication." The point they made to us is, if you hang the legal test of this criminal offence on the issue of relevance—in the wording of the White Paper, "relevant to the development of weapons of mass destruction"—if that is going to be the peg for the offence in legal terms, their concern was that over a huge swathe of perfectly normal academic work inside universities covering neurology, toxicology, bacteriology, electronics, et cetera, you could get people feeling they might be at risk of an offence if you actually produced an order in this area when they were engaged in their normal academic work. They suggested as an alternative that the test should be not "technology relevant to the development of weapons of mass destruction" but the test of intentionality, whether somebody communicating this information was intending to advance the development of weapons of mass destruction. I can see you saying almost instantly back to the Committee, as we would acknowledge very readily, we hope there is not a single university lecturer or professor anywhere in the UK who is contemplating giving their normal academic work with the intention of proliferating information relevant to weapons of mass destruction. If "relevance" is possibly too wide and "intentionality" too narrow, can you shed any light for the Committee, if you keep your test of relevance as set out in the White Paper, on how you would intend to sufficiently circumscribe "relevance" to make certain that you do not impede in any way the proper conduct of academic work in the UK?
  (Mr Byers) I think this is an important point if there is a danger that legitimate academic work could be halted because of the concerns people might have. We have been looking at the response we have had since the publication of the White Paper and there are two things we propose to do. Firstly, to have a situation where the offence only applies where someone actually knows or is informed by the Government that there is a risk related to weapons of mass destruction. Secondly, and this is the point about academic research and publication, this should not apply to information which is in the public domain. So if there is a publication of academic work which in some way may be abused or used by someone, that would not be an offence because it is in the public domain. So those two responses hopefully will overcome the particular difficulty. Now I have put on the record how we intend to respond, no doubt people will get back to us saying it does not quite work, but in terms of the point Sir John was making, those may even go a bit further than just saying it is a question of intent, because to let it be an offence we, the Government, would actually have had to inform the individual or the institution about possible difficulties.

  276. Are you saying that availability on the internet would be within the legal definition of "in the public domain"? If you are going to say that if some particular individual running a bacteriological project in relation to Anthrax, say, somewhere in some university puts the results of that up on a website somewhere, is that going to make it impossible for you to prevent dissemination of that potentially extremely sensitive and potentially very dangerous information as far as the UK is concerned?
  (Mr Byers) It shows we will have to have a very clear definition of what we mean by "publication" in this particular context. There is a debate going on more widely about publication in respect of the internet, but I think that is a point well made. We will certainly be very careful when we define the term within the context of this particular provision.

Dr Godman

  277. Are you saying that the internet would have the same status as an academic journal?
  (Mr Byers) No, I am not saying that. What I am saying is we will have to come up with a definition. It may be. What we will need to do is to come up with a clear definition of what we mean by "in the public domain". That is the important point.


  278. Thank you very much indeed, Secretary of State. I understand one of the consequences of a Bill of this kind, hopefully an Act within the next session of Parliament, is that it will make it easier for us to get an agreement under the US ITAR arrangements, because it meets in many ways the worries and concerns of the United States. Does it meet them all? Does the nature of it mean, from what you know, that the United States authorities will now, if this was enacted, be content and that the ITAR arrangements can proceed?
  (Mr Byers) I understand it does but I have to say that has not been the prime motive behind introducing the Bill. Hopefully it is a happy, unintended consequence. I think it does, so I have been told. Chairman, do you want to go back to bovine offal?

  279. Yes. I do not know whether that is a good way to end this interesting session!
  (Mr Byers) I am informed that it is not necessary to include it in the Bill. There are no controls in place under the 1939 Act on agricultural exports. While an order under the 1939 Act at one time provided powers to control exports of bovine offal, this has now been repealed because the powers have been superseded by European legislation. That is the answer to your question.

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