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7.15 pm

The Minister offered a justification for not including the existing exemptions in the Bill: the definitions of

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"public domain" and "basic scientific research", which are used in the exemptions, are derived from international agreements and might be changed when those agreements are revised; and it would be inconvenient if he had to promote primary legislation to reflect those changes in UK law. Such an explanation fuels the very fears that he is trying to allay. The very purpose of pressing to include those exemptions in the Bill is to make it as hard as possible for them to be removed or changed. The mere fact that the Minister or his officials might agree with one or more of their counterparts abroad that it would suit them to remove or narrow down the exemptions should certainly not be enough to enable them to effect that change in UK law. Academic freedom is far too important to be exposed to dilution through horse-trading between Governments. It is far from reassuring that a Minister with responsibility for science should apparently put his own legislative convenience above the importance of academic freedom.

Lords amendment No. 4 deals with internal transfers, or imports, of technology, not its export, which is what the Bill should be limited to. The provisions would expose to control academic teaching and collaborative research within the UK—especially the teaching of foreign students—and also the publication in the UK of research work undertaken in this country or abroad.

The only justification offered for the provisions is that they will prevent evasion by foreigners visiting the UK to obtain controlled technology; but that justification is wholly inadequate. If transfers are made in the UK for the purpose of sending information abroad, in breach of controls, the parties involved are guilty of conspiracy to commit breaches of the controls and can be prosecuted accordingly. The powers are far too wide for that purpose.

There have been controls on the export of goods for many years, without any equivalent extension for controls on their transfer within the UK "to prevent evasion": the supposed loophole does not exist. It is unnecessary to prohibit the transfer inside the UK, as export by a foreigner is controlled—that is sufficient. It is no answer to say that a foreigner can carry the technology abroad inside his head.

Controls on intangibles such as technology should apply to the equivalent of controlled documents: the UK argued successfully for that very principle to be reflected in the EU dual-use regulation, where article 2 defines "export" as including

"transmission of software or technology by electronic media, fax or telephone to a destination outside the Community; this applies to oral transmission of technology by telephone only where the technology is contained in a document the relevant part of which is read out over the telephone, or is described over the telephone in such a way as to achieve substantially the same result."

It is clear that what should be controlled are not general ideas or the results of education or training, as they are inevitably capable of being carried inside the recipient's head, but the electronic equivalent of technical documents. The foreigner visiting the UK to obtain controlled technology must thus breach export controls to send it abroad, and would be caught by controls imposed under (2)(a) or (2)(b), without (2)(c) or (2)(d) being necessary.

There are enormous problems with Lords amendment No. 10. It relates to protection of what is already in the public domain or is being published. Subsection (1)(c) deals with unpublished information being exchanged in

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the course of teaching or research. Subsection (2) makes it clear that there would be no conflict with the secrecy provisions under the Patents Act 1977, or with obligations under the Official Secrets Act 1911 or similar obligations.

Weapons of mass destruction and their associated missile programmes are a special case. Subsection (l)(c) ensures that controls can still be applied to unpublished information in the case of teaching and research; and subsection (3) tracks the special provisions applicable under article 4 of the dual-use regulation in respect of exports outside the European Community, thus avoiding any apparent conflict between the Bill and the regulation.

Lords amendment No. 16 relates to clause 7 which is inadequate to protect academic freedom for three reasons. First, it leaves the Minister to decide the matter; all he has to do is to take into consideration the need to do so. When a Minister claims that national security and so on override academic freedom, the courts almost never interfere.

Secondly, the clause gives no protection to anything to which the general public have no access. That may include the contents of lectures—so far as they are not previously published—and will certainly include all pre-publication interchanges between academic researchers. Thirdly, it fails to impose any duty on the Minister to grant licences under the dual-use regulations.

So the whole proposition is not founded on reality and it involves a misunderstanding of the academic world in this country. Defence manufacturers agree that there should be an equality of approach. They are not asking to be exempt from certain controls, and they are keen that academics should not be exempt from certain controls. The Bill has not got the right balance, but Lords Amendment No. 10 has, and I very much hope that the Minister will bear that in mind because we shall certainly disagree with him if he presses the matter to a vote.

Alan Howarth (Newport, East): In considering these amendments, we seek to reconcile two imperatives, which, if not in contradiction, are certainly in tension. Of course we need to prevent the transfer of knowledge that would assist terrorists in pursuing their aims, as well as those who seek to develop weapons of mass destruction. As a member of the Intelligence and Security Committee, I certainly do not understate the importance of that. Equally, however, we need to protect academic freedom.

Those who have expressed their anxieties in relation to academic freedom—notably, Universities UK and Save British Science—are not opposed to the Government's legitimate aim of preventing the transfer of technology for use in terrorism or mass destruction, but they are, as I am, critical of the very loose drafting of the clauses that relate to those matters.

I believe that the proponents of both sides of the argument are acting in good faith. Of course the Government want the universities to thrive if only because they know how important that is to our economy, and the Government encourage our universities to attract foreign students and academics to study and carry out research in this country.

It is genuinely difficult to reconcile those two imperatives and to find effective means to regulate the exchange of information and ideas, of intangibles. Universities have expressed the concern that activities that are routine in the global academic community—

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collaborative research, exchanging and debating ideas through e-mails and holding international conferences—could be put at risk under those provisions.

Hon. Members ought to express our thanks to Members of the other place—unreformed though it may be—for their vigilance in the interests of academic freedom. It might have been possible for Ministers who are members of the Government's legislative programme committee to have noted the possible threats to academic freedom when the Bill was originally proposed. It may have been possible for hon. Members to have observed the same things earlier in our proceedings. The Quadripartite Committee at any rate took evidence from Universities UK, drew the Government's attention to those issues and expressed its hope that a better balance might be struck.

It is not the first time that their lordships' House has been more vigilant than we have been in regard to academic freedom. Some 10 years ago, when the Further and Higher Education Bill was proceeding through Parliament in the winter of 1991 to 1992—I have to confess that I was the Minister responsible for the clauses on higher education—the Treasury, to my embarrassment and anger, insisted on intruding into the Bill a "he who pays the piper" clause, so enabling the Government to exercise some direction and restraint on academic activity. At the time, a number of peers—in particular, Lord Beloff and Lord Renfrew—made some very fine speeches in support of the principle of academic freedom. They were thorns in our side as the Government, but they were absolutely right to make those points.

Academic freedom matters profoundly, and Governments should be more careful of it than they are. As my hon. Friend the Minister has noted, the EU dual-use regulation removes certain discretion from the Government, but that does not mean that they should not be extremely careful in exercising their discretion. There is too much instrumentalism in Whitehall's approach to higher education and Governments are not customarily sufficiently tender towards academic freedom and academic sensibilities. No one, however, as far as I am aware, is impugning the good faith and good sense of the Ministers who are responsible for the Bill.

After all, my right hon. Friend the Secretary of State for Trade and Industry was a director of the National Council for Civil Liberties in a previous incarnation. She certainly cannot be indifferent to considerations involving academic freedom. The Minister for Science and Innovation, Lord Sainsbury, is passionate about supporting science in our universities. My hon. Friend the Minister has two universities in his constituency, and no one is more diligent in keeping lines of communication open to his constituents, so he does not underestimate those considerations.

Having made those points, I must say that it is profoundly undesirable that we should have primary legislation on the statute book that a future Government could construe illiberally, so severely damaging academic freedom. Of course there are differences of interpretation about the significance of the drafting of the relevant clauses and amendments. I certainly do not agree with some of the more lurid accounts that have been expressed in previous parliamentary proceedings, but I attach

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considerable weight to the testimony of Lord May of Oxford, the Government's former chief scientific adviser and an immensely distinguished scientist, who said:

"We need to be especially careful about how we limit academic freedom. The exceptional circumstances need to be spelled out clearly and carefully, and not in sweeping general terms . . . I support the spirit of this group of amendments."—[Official Report, House of Lords, 18 April 2002; Vol. 633, c. 1119.]

I understand that the lawyers who have advised Universities UK have expressed the opinion—although in terms perhaps a little milder than those just used by the hon. Member for Salisbury (Mr. Key)—that clause 2, as drafted, may give the Government the right of prior review of scientific publications and that clauses 2 and 3 might give officials the power to require that foreign research students should be licensed and that the present voluntary vetting system should be made compulsory. They suggest that clauses 2, 3 and 4 would threaten routine academic activities in a variety of ways through the power to impose export and trade controls on intangibles—matters such as software, e-mails, presentation slides, manuals and training programmes. They also express a broad concern that the definitions in the Bill

"are so wide that essentially all science and technology falls within it."

So their lordships passed amendment No. 10, which is, of course, deficient. The Minister powerfully explained its inadequacies, but the underlying principles are right: the Government should unambiguously affirm in the Bill their commitment to academic freedom, any exceptions should be specific and the safeguards for academic freedom should be clearly stated in primary legislation. Correspondingly, the Government introduced Lords Amendment No. 16, and we should be appreciative of that. However—this is a legitimate concern—it is loosely drawn and there are respectable fears that it could be too weak in its application.

Lord Amendment No. 16 states that the Government

"shall have regard to the need to avoid any unreasonable restriction".

I had hoped that the Government would do rather better and draft a clause that would be more stringent and better focused in its effect. The Secretary of State will be left with a great deal of discretion. We are told that the European convention on human rights, which is incorporated in our domestic law, would provide further safeguards, but as Lord May observed, that is a cumbersome and protracted remedy. However, no better clause has been tabled. I am a little surprised, given the extent of academic concern about this issue, that academic lawyers have not been able to propose a preferable version, but we will have to live with Lords Amendment No. 16.

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