House of Commons - International Development

Select Committee on International Development Sixth Report

VI TECHNOLOGY TRANSFER AND WEAPONS OF MASS DESTRUCTION

1996 Green Paper

67. The 1939 Act covers only tangible exports. The 1996 Green Paper raised an issue not covered in the Scott Report — the extension of export controls to transfer of technology by 'intangible' means, such as fax, e-mail and word of mouth. It noted that "there are currently no comprehensive controls on such activities." Under one general heading, the Green Paper raised several separate but interrelated issues —

the strengthening of existing legislation on weapons of mass destruction (WMD)

the passage of scientific know-how, predominantly in an academic context, on WMD technology

the intangible transfer of technology relating to conventional weapons

trafficking and brokering.

Strengthening legislation on WMD

1996 and 1998 proposals

68. The 1996 Green Paper questioned whether the offence recently created under the 1996 Chemical Weapons Act of helping in the development of a chemical weapon by transfer of technology should be applied to other forms of technology relevant to the production of weapons of mass destruction (WMD) or their means of delivery. The 1998 White Paper set out the Government's proposals for strengthening the controls on WMD —

the creation of a new offence of aiding, abetting, counselling our procuring a foreigner overseas to develop, produce or use a chemical weapon, or to engage in military preparations, intending to use a chemical weapon:

to extend to biological and nuclear weapons the more comprehensive provisions of the 1996 Chemical Weapons Act extended as above, and with an exemption for involvement in the official nuclear weapons programmes of NATO countries.[109]

The Trade and Industry Committee Report recorded that these proposals had not attracted much comment, and called for clarification of the scope of the proposed exemption for NATO.[110] The Government's Response stated that exemption "would only occur for nuclear weapon states that are members of NATO, not for all members of NATO."[111]

March 2001

69. Cm 5091 notes that the 1998 proposals had been "generally welcomed" and that they would be implemented in the Bill. It is disappointing that draft clauses to do this are not in the draft Bill at present, but they will be included in the Bill which is introduced to Parliament.[112]

Transfer of WMD technology

1996 Green Paper

70. The 1996 Green Paper warned that "proliferators may try to acquire sensitive knowledge through post-graduate studies at British universities (the government currently operates a voluntary scheme with universities). Knowledge may be disseminated by other academic contacts, for example through seminars or conferences, whether here or abroad." It questioned whether the Government should try to control the admission of students to courses of study where information might be used for the development of WMD and raised the wider issue of whether any new legislation should seek to control the transfer of technology by intangible means.[113]

1998 White Paper

71. The 1998 White Paper proposed in general terms that new legislation should provide it with the power to control the transfer of all controlled technology by electronic means, and furthermore to control information passed on in "non-documentary form (eg orally or through personal demonstration)" where it related to WMD technology.[114] In a separate passage, the Government proposed to make it an offence "to do something that would promote or facilitate the development or production of weapons of mass destruction either if the Government has informed someone that what he is doing poses such a risk or if someone knows by other means or has grounds for suspecting that a particular course of action might assist such a programme".[115] This proposed offence was intended to include information in non-documentary form. Controls on non-documentary information were limited to WMD technology in view of enforcement difficulties and "sensitivities in relation to free speech and academic freedom".[116] The 1998 White Paper also raised the question of whether to make publication of controlled technology relevant to the development of weapons of mass destruction an offence, whatever the medium, as a means of preventing or deterring posting of such information on the internet.[117]

Reaction to 1998 proposals

72. The Trade and Industry Committee Report recorded the concern of the academic community at the suggestion that the transfer of information with potential applications to a WMD programme would require licensing, even where there was no evidence that the recipients presented a risk. The Committee of Vice-Chancellors and Principals — now Universities UK— was highly critical, referring to an "unacceptable threat to the operation and standing of UK higher education". The Report set out the fears expressed that the threat applied not just to nuclear physics and chemistry, but potentially all branches of medicine and all computer science research.[118] The Government's Response noted these concerns, and suggested that some of the fears expressed were misplaced; most transfers of technology in the public domain would, for example, be exempt.[119]

The Government's proposals

73. Cm 5091 recognises the concerns expressed that the proposals could "hinder freedom of speech and cause difficulties for universities in their recruitment and teaching of foreign students".[120] The amended proposal — which is not on the face of the Bill but will be in secondary legislation — is that a licence would be required only where the information provider knows or has been informed by Government that the activity in question is intended for use in connection with a WMD programme, rather than having grounds to suspect this as in the 1998 White Paper. Information in the public domain is to be excluded, exempting much standard scientific instruction. A footnote to Cm 5091 asserts that copyright restrictions do not take technology or software out of the "public domain".[121] The Government is considering whether "to make any additional and specific provision to exempt academic activities and will consult with the academic community on this issue."[122]

Academic concerns

74. We heard oral evidence from Universities UK in view of the strength of their concerns expressed in response to the 1998 White Paper. In a memorandum submitted to us, they stated that the draft bill went "some way" towards meeting these concerns.[123] Their principal remaining concern was that the promised protection of academic freedoms, including an exemption for any matter in the public domain, should be on the face of the Bill rather than being left to secondary legislation or Ministerial direction.[124] Their view is that the matter is of sufficient importance to be in primary legislation, subject to detailed amendment and challenge, rather than "dependent on the restraint with which Ministers exercise statutory powers". [125] The Secretary of State told us that he was sure that these provisions could be incorporated into the Bill.[126] We recommend incorporation in 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.

75. Concerns remain over the free transfer of academic expertise in some areas of knowledge which might be applied to programmes of weapons of mass destruction. The Government could inform a provider that a whole class of scientific knowledge was intended for use in connection with a WMD programme, in effect requiring that any communication of it be licensed. Examples given in oral evidence were signal processing and cryptoanalytic software.[127] But it is the Government's proposition that such transfers should need licensing, not that they would be prohibited. It is possible that some sort of open licence would be given, for specified bona fide collaborative scientific programmes. We see no case for complete exemption of academic activity from export controls.

76. Evidence from Universities UK suggested exclusion from the requirement for licensing of information "transferred by being put in the public domain", raising the problem of malevolent or mischievous publication on the internet.[128] The Secretary of State agreed that any definition of information in the public domain, and so exempt from controls, would have to be drawn up very carefully to insure that it did not legitimise posting of hitherto controlled technology on the internet.[129] We recommend that steps be taken to ensure that measures in UK legislation reflect the experience of other nations also seeking to deal with the challenge of use of the internet as a means of transmitting controlled technology.

Conclusion

77. The proposed controls on the passage of technology relevant to weapons of mass destruction are profoundly significant. The Government's proposals are, we believe, ground-breaking in some respects. They deserve support for bringing them forward. It is an area of policy crying out for more effective international agreement. There would also be benefit in close analysis of the experience of other countries and of the measures they are taking, faced with similar challenges. Given the complexity and sensitivity of the issues, it is also particularly important that there be wide and detailed consultation in drawing up the secondary legislation. Non-proliferation is arguably the most important single issue in strategic export control.

109 3.1.1-3.1.3 Back

110 HC 65, para 33 Back

111 HC 270, page vii Back

112 Cm 5091, page 21, paras 78-80 Back

113 1996 Green Paper, paras 2.3.6-8 Back

114 1998 White Paper, 3.2.1 Back

115 1998 White Paper, para 3.1.4 Back

116 ibid, para 3.2.1 Back

117 ibid, para 3.2.3 Back

118 HC 65, para 40 Back