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The Chairman of Committees: I am sorry, but I have called Amendment No. 43A, which seems a rational thing to do.

Lord Phillips of Sudbury moved, as an amendment to Amendment No. 43, Amendment No. 43A:

The noble Lord said: I shall cease to be shy and shall come to the fore. I shall speak to Amendments Nos. 43A and 43D, which are part of the same group. They are of the most innocent kind. They are designed to render in intelligible English that which one can honestly say is unintelligible. Indeed, when reading the astonishing phrase, "description of thing", one probably ought to utilise a voice which does not vary either up or down. It is a true example of George Orwell's "newspeak". His book, Nineteen Eighty-four, states:

    "Newspeak was founded on the English language as we now know it, though many Newspeak sentences, even when not containing newly-created words, would be barely intelligible to an English-speaker of our own day".

He went on to anticipate the growth of "newspeak". The amendment surely is newspeak and I hope that my attempt to render it less bizarre does no injustice to the meaning of the clause.

Lord Redesdale: I should now like to—

The Chairman of Committees: It is customary—

Lord Phillips of Sudbury: I beg to move.

Lord Redesdale: I apologise to the Committee. I have been mistaken because I thought that Amendment No. 43 was the amendment which was to be moved and that the other amendments were grouped. I was obviously mistaken in that assumption and therefore I thought that I was speaking to a group of amendments. I apologise to the Committee for speaking out of order.

The purpose of Amendment No. 43B, which amends the Government's amendment, is to remove the potential contradiction between the language used

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in the amended Clause 5 and the amended schedule and ensure that the Government have the powers they seek to control all military and security equipment.

There is currently an ambiguity in the Government's amendment to the schedule when read with the amended Clause 5. Under the amendment to Clause 5, controls may be imposed only in relation to the categories of "things" referred to in the schedule and not to things which belong to categories not referred to even where they may have relevant consequences. That is because Clause 5(1)(b) as amended states that controls may be imposed only in relation to a description of things that is within one or more of the categories mentioned in the schedule.

That language would appear to preclude the imposition of export or trade controls, for example, in relation to goods or equipment which are not referred to in paragraph 1(1) of the schedule. However, paragraph 2 of the schedule is drafted so as to enable export, transfer, technical assistance and trade controls to be imposed in relation to any "thing" which is capable of having a relevant consequence.

The definition of "military equipment" in paragraph 1 of the amended schedule appears to be inclusive rather than exhaustive, but it is unclear whether it is broad enough to include all the items that may now or in the future be regarded as necessary to control; for example, many items for internal repression, such as handcuffs and riot shields. It would follow that in relation to items which are not referred to, controls may not be imposed even where those items are capable of having the relevant consequences set out in paragraph 2 of the schedule.

Following discussions with the DTI on this point, Matrix Chambers gave the following opinion:

    "The DTI expressed the view that it would still be possible under this amendment to impose controls over a wider range of goods than those specifically referred to in the Schedule, provided that they were capable of having a relevant consequence (and leaving aside the power to impose controls in order to give effect to EC/International obligations, which is dealt with separately). In my view, that interpretation is inconsistent with the language of Clause 5 which clearly confines the scope of Clause 5(1)(b) to things within one or more categories referred to in the schedule".

We on these Benches feel strongly about this matter. Obviously, the purpose of the amendment is to be as inclusive as possible. However, in order that we do not have to bring the matter back at later stage, it would be helpful if at this stage the Minister could give an assurance that the Government believe the loophole has been covered with the strongest language possible.

Lord Sainsbury of Turville: The amendments tabled in the name of the noble Lord, Lord Phillips of Sudbury, and the amendment proposed by the noble Lords, Lord Razzall and Lord Redesdale, to government Amendment No. 43 seek to clarify the new text that would be inserted by the government amendment. Naturally we share the objective of achieving clarity in the Bill. Let me say that I

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appreciate the constructive intention that lies behind the amendments and it is in that spirit that I should like to respond.

We have considered the amendments very carefully, but the Government believe that their own draft of subsection (1A) in Amendment No. 43 achieves the desired result and that the further amendments will not quite work. Turning to the amendments tabled by the noble Lord, Lord Phillips, I grant that the use of "description of thing" in the government amendment does not at first appear to be particularly elegant. Like myself, the noble Lord was probably brought up not to write English essays in which one referred to "things" all that often. However, I hope to explain why in this case it is appropriate and clear. The important point is that the Bill should express agreed policy in language that is technically accurate in a legal sense.

Subsection (1) of Amendment No. 43 refers to controls that may be imposed only,

    "in relation to a description of thing that is within one or more of the categories mentioned in the Schedule".

It is in relation to that subsection that the use of the expression "description of thing" is used again in subsection (1A), so they should be considered together. I do not think there is any doubt at all what is meant here; it is simply a question of how it is expressed.

The reason why the expression "description of thing" is used in the Bill is that it is and has to be generically wide enough to embrace three quite distinct categories, or—it is difficult for obvious reasons to avoid saying this—three distinct "things". Those three things are goods, technology and technical assistance. There is no adequate alternative to "description of thing" that could include all three.

If we turn to the noble Lord's alternative wording, his proposed replacement of "description of thing" with "goods, technology, or technical assistance falling" by itself does appear reasonable. It is simple and may seem to have an advantage in avoiding the use of the expression "description of thing". However, as I mentioned a moment ago, subsections (1) and (1A) need to be considered together. The consequence of using his proposed wording in Amendment 43A is that it lacks a distinction between the terms used; namely, goods, technology and technical assistance, and the terms employed to elucidate their meaning in the definition in his Amendment No. 43D. The result is repetition which, unfortunately, goes against the generally accepted practice of not using terms to be defined as part of a definition. Thus, where we are told that "goods" means "goods", and "technology" means "technology", we are none the wiser. That failure is not rescued by the additional text in brackets.

In contrast, the use in government Amendment No. 43 of the term "description of thing" serves as a hook on which to catch the three separate terms—goods, technology and technical assistance—and it does so without repetition. Hence, in subsection (1A) "description of thing" as the generic expression used in subsection (1) enables us to say with elucidation and without repetition that it means a "description of

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goods", and similarly with a "description of technology" and a "description of technical assistance". In each case the word "thing", with its useful generic quality, enables us to embrace all three; that is, goods, technology and technical assistance.

I agree that much of this response may sound rather like words written by George Orwell, but this is the technically correct answer to the position.

The amendment tabled by the noble Lords, Lord Razzall and Lord Redesdale, would provide that "description of thing" referred only to the relevant consequences listed in the schedule. However, as I have already explained, government Amendment No. 74 now makes explicit that controls can be imposed in relation to military equipment and technology. That is irrespective of whether the equipment or technology would have one of the relevant consequences set out in the table to the schedule. For that reason, this amendment would undermine the additional certainty and clarity which Amendment No. 74 will introduce as to the Government's ability to control all military equipment and technology.

I hope that noble Lords will feel able to accept my explanation of what at first appears rather awkward language in Amendment No. 43 and agree that the government amendment does achieve what it sets out to do. In the light of that, I hope that noble Lords will withdraw their amendments and I invite the Committee to support the Government's proposed amendments as tabled to Clause 5 and the schedule.

3.45 p.m.

Lord Judd: I understand that my noble friend on the Front Bench has tried most helpfully to clarify the situation, but I hope he will agree that one of the difficulties that both he and Members of the Committee are facing is that the purpose of the Bill seems to have changed over the past year. When the Bill was discussed early last year, the whole objective was to define the purposes for which equipment might be used. Now the emphasis has changed to describing the things that might be used for the wrong purposes. Of course when one starts to describe "things", immediately there are difficulties, because however one tries to draw up the descriptions, the parameters may or may not be adequate. In that context, I wonder whether my noble friend might be tempted to take this away and think on it a little further before the final stages of the Bill.

Perhaps I may cite a specific example. My noble friend has suggested that he needs broad categories, but I wonder whether those categories are sufficiently broad. For example, riot shields, tear gas and handcuffs are not necessarily designed for military use. They are not firearms, they do not require military technology and they are not used to produce military equipment. As I understand it, under the terms of Amendment No. 43 they could not be controlled. However, they could be controlled under the wording of Amendment No. 75. Here lies the inherent contradiction to which the noble Lord, Lord Redesdale, so clearly referred.

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Amendment No. 75 states that:

    "Export controls may be imposed in relation to any goods the exportation or use of which is capable of having a relevant consequence",

as defined in the list set out in the schedule, such as internal repression or regional instability. That is obviously a sensible piece of drafting because it gives the Government a power to control a range of equipment which may not be necessary to fulfil an international obligation, or which may not fit into one of the categories set out in the schedule, but which could, for example, be used for internal repression.

I also understand that my noble friend's own department has stated quite rightly that it favours the "belt and braces" approach as laid out in Amendment No. 75 amending the schedule. But if the Government are not inadvertently to limit the range of equipment that they are able to control, surely they should accept that Amendment No. 43B, moved by the noble Lord, Lord Redesdale, would make Clause 5 clearly consistent with the schedule which, in all humility, I suggest to my noble friend is not altogether self-evident and clear at the moment—and that is to put it mildly.

I wonder, therefore, whether in his reply my noble friend can give a specific assurance to the Committee, on the record, that the Bill includes the power to control all police and security equipment under the wording of amended Clause 5.

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