Examination of Witness (Questions 260
WEDNESDAY 25 APRIL 2001
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.
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,
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
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.
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
(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 relevancein 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
(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.
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
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
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