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Lord Razzall: I support my noble friend Lord Redesdale on Amendment No. 45. Under Clause 5, the Minister can make a temporary order, provided he lays it before Parliament after 40 days. The amendment would deal with a situation in which a temporary order had a duration of less than 40 days. Bearing in mind that that would be likely to happen only in circumstances of significant emergency, we feel that it would be appropriate for there to be parliamentary scrutiny of such an order. This is a lacuna in the Bill that ought to be rectified. I would welcome the Minister's response to that point.
4.15 p.m.
Lord Judd: Does the noble Lord agree that, further to the important point that he has just made, it is not inconceivable that under the arrangements proposed an order could escape scrutiny altogether, because it could relate to something that was going to happen and finish within the 40 days? That is a serious matter, if we take into account the firm strictures of the noble and learned Lord, Lord Scott, on the arms to Iraq affair.
Lord Razzall: As so often, the noble Lord, Lord Judd, puts the matter better than I did.
Lord Sainsbury of Turville: Both amendments relate to the provision in Clause 5(2) that allows orders to be made for reasons that fall outwith the schedule. Amendment No. 45 would provide that such orders should be subject to parliamentary scrutiny by means of the draft affirmative resolution procedure. Amendment No. 47 would limit the time that such orders may remain in force without the further express consent of Parliament from 12 months to three months. I shall deal with the two amendments in turn.
On Amendment No. 45, the Government agree that any orders made for reasons that exceptionally do not fall within the schedule must require the express approval of Parliament by means of the affirmative resolution procedure. However, we believe that the delayed rather than the draft affirmative resolution procedure is the more appropriate tool for seeking such approval. Clause 12(2) provides for that. It is important to appreciate that any orders made by virtue of Clause 5(2) would most likely be needed to respond to unforeseen emergency situations, when the consequences of any delay might well be serious, such as in the case of emerging technologies that no one had thought of. It is vital that the Government should be able to introduce new controls to deal with such situations immediately. With the best will in the world, one cannot be confident that orders that cannot be introduced until approved in draft by both Houses of Parliament will not be subject to any delay. I therefore invite the noble Lord to withdraw the amendment. Our proposals strike the right balance between being able to move swiftly to deal with unforeseen circumstances and giving Parliament the right to express its views within 40 days.
Amendment No. 47 would reduce significantly the time that temporary orders may remain in force without requiring the further approval of Parliament. While we understand the particular concern that attaches to the order-making power in Clause 5(2), the Government believe that it is reasonable and appropriate that any order made under this part of the Bill that has been expressly approved by both Houses of Parliament may be operated for up to 12 months until it lapses or is required to be resubmitted to Parliament for each House to determine whether it may remain in force. It is reasonable to expect that Parliament should be capable of judging whether any order is fit to be operated for a period of up to 12 months. I repeat that any orders introduced under
Clause 5(2) are likely to be needed to deal with serious emergency situations. The Government believe that 12 months is a reasonable compromise between the wish to ensure that any such temporary emergency controls can remain in force for as long as they are needed and the proper concern that controls made for reasons outwith the schedule should not be operated indefinitely.In view of that explanation, I invite the noble Baroness and the noble Lord not to press their amendments.
Lord Razzall: Is the Minister prepared to comment now or on Report on the point made by the noble Lord, Lord Judd, that if the Bill is passed in the Government's proposed format, it would be possible for an order in emergency circumstances with a termination date of less than 40 days to be brought forward without any parliamentary scrutiny? What is his comment on that?
Lord Sainsbury of Turville: An order brought forward in that form would have to be debated. However, the need to act quickly may require that action be taken before debate by Parliament. I shall write to the noble Lord to confirm the situation, but such an order would have to be debated.
Lord Redesdale: I thank the Minister for his reply. I also agree that the need for flexibility in certain situations covered by the Bill is of paramount importance. I shall look closely at the reasons given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sainsbury of Turville moved Amendment No. 46:
- Page 4, leave out lines 21 to 31 and insert "for its expiry no later than the end of the period of 12 months beginning with the day on which it is made.
On Question, amendment agreed to.
The Deputy Chairman of Committees: Amendment No. 47 cannot be moved.
[Amendment No. 48 had been withdrawn from the Marshalled List.]
Clause 5, as amended, agreed to.
Baroness Miller of Hendon moved Amendment No. 48ZA:
The noble Baroness said: In speaking to this amendment, I should like to place on record my disquiet about some of the ways in which we have reached the current position. I say "disquiet" rather than "anger" although I felt quite cross at the time. Last Wednesday, the Minister was extremely courteous to me when he telephoned and explained that, although Clause 7 would not be included in the Bill, I could nevertheless speak to my amendments to Clause 7, and he would reply to those amendments. I expressed my concerns on the telephone.
The following day, as agreed, my office telephoned his office. I was told that I should change my amendment into a new clause and move it after Clause 6, enabling me to speak before the Minister moved his relevant amendment. The Public Bill Office confirmed that it had been told exactly the same thing by the department. We went away after tabling such an amendment.
It was not until Friday morning that we discovered that my amendment was not after Clause 6, but after Clause 7. The reason given for the change was that Clause 6 had been dealt with in our first day in Committee. After quite a hassle—it was not unpleasant, but the matter has taken quite a bit of time to work out—I found myself able to introduce this amendment after Clause 5. I raise the issue with the Minister simply because this is a very important amendment on which I have worked very long and hard, and it is important that it be considered in the right place.
I can also tell the Minister that it was when I came in on Friday—the House was sitting to consider the tobacco Bill, although I was not involved—that I discovered where my amendment had been placed in the Marshalled List. I found on my desk a letter from him saying that the New Scientist article contained many inaccuracies but that there would be no apology until after today. Therefore, had I not come in on Friday, I would have arrived today prepared to discuss my amendment—now new clause—which was based
I think that, as the Minister was kind enough to telephone me on the Wednesday, a telephone call could have been made to me about this matter. It should not have been dealt with in a letter left on my desk on a Friday afternoon. In taking briefings from the people concerned, I have had to contact America and serious academics in this country. I feel that this is an entirely improper way of dealing with this type of amendment. I simply wanted to put my feelings about that on the record.
This is a major and important amendment which I am proposing at the request of Universities UK, formerly known as the Council of Vice Chancellors and Principals, and the Association of University Teachers, which represents 45,000 academic and academic-related staff in universities and colleges. I am very glad to bring forward the amendment as I very much believe in its essence. It is a very important amendment which I hope the Government will decide to accept.
The amendment covers a subject of the gravest concern, prompting anxiety throughout the whole of scientific academia, both among individuals and the institutions in which they work. I have been briefed of the problem rather late in the Bill's progress and it may very well be that the proposed subsections are not in the best possible place, especially in view of the late changes and new clauses that the Government themselves have just introduced to the Bill, eight months after it was first presented to Parliament. However, so long as the Government accept the principles behind the amendment, I am sure that we shall be able to agree a new spot and any necessary modification to the wording before we reach the next stage.
Export controls on goods affect mainly trade. Important as the free movement of goods may be, it is easy to understand the claims of public policy in the interests of national security, and it is relatively easy to define the boundaries of what types of goods may not be exported—such as weapons or anything capable of being used as such. However, control over the export of ideas is a radically different issue. The whole problem dealt with by these amendments revolves around the issues of freedom of expression, freedom of teaching and freedom of research. Those freedoms are fundamental human rights that give way less readily to the claims of the state. The extension of controls on goods to controls on intangibles—the control of ideas—is therefore a radical step with serious constitutional implications.
Goods are exported if they are physically moved out of the country. Ideas are physically harder to control. In order to control the export of ideas, which is what the Government are attempting to do in Clause 2(2)(c), they propose—mark this well, my Lords—to control the exchange of ideas even within the United Kingdom. The Government offer the sop of a qualification that this totalitarian restriction applies only where,
Practically any publication of information may result in it being used abroad. It can certainly be assumed that any technology taught to foreign students will be used by them when they return home. Clearly the Government, despite their protestations to the contrary, are taking powers to license foreign students and regulate what they may be taught. What is to be avoided is any power in Whitehall to impose prior scrutiny of research and restraint of the publication of the results of research.
The Minister has given assurances to some academic representatives that the Bill will not be used to restrict the transfer of information already in the public domain. "Public domain" has not been defined by the Minister, nor is it in my amendment; however, I am sure that there is no difficulty on that score. It is already a term with which the courts are familiar in the application of the Patents Acts. I have tried to make it plain that "public domain" is not restricted to the United Kingdom. Furthermore, freedom of publication must apply to the results of research.
The Minister disclaims any intention to impose such controls and points to the existence of exemptions in the current regime. Exemption exists by the grace and favour of the Minister. It is essential, however, that academic freedom should be entrenched in well-defined primary legislation and that exception to that right should be specifically established by Parliament.
In these days of mass communication, if something is known in Lapland it can be assumed that it is known in the United Kingdom, Russia, the United States of America or wherever. However, without doubting the Minister's word, it is clearly essential to put academic freedom into words if only to protect against the actions of an over-zealous official at some future time. We are not used in this country to extra-statutory exemptions from the strict wording of an Act of Parliament, nor of a law being interpreted by ministerial ex cathedra pronouncements.
Hitherto, someone in the United Kingdom who made a new scientific discovery or technical innovation had a choice: he could apply for a patent, in which case the Government had the opportunity to suppress it as a sort of state secret, or he could effectively give it to the world simply by publishing it. In the latter case the Government had no power of control. This has been seen by academics as a fundamental freedom. However, it seems that some parts of Whitehall have seen that right to publish and exploit one's work as a loophole that they have to close. That sort of outlook has made it hard, if not impossible, for successive governments to come up with a satisfactory freedom of information Act.
There is no question but that the broad wording of Clauses 2 and 3 imposes prior restraint on academic publication and international co-operation in research. I cannot believe that it is practical to have civil servants review tens of thousands of scientific papers every year to decide whether a licence should be granted under the powers sought in the Bill. For that to be done properly would require funding far beyond
What is required, therefore, is an exemption for communications in the ordinary course of academic research and teaching. The Minister points to an exemption in existing controls for basic scientific research. But there are two flaws in that. First, these controls are too important to be left to secondary legislation. Secondly, the phrase "basic scientific research" is too narrowly defined, being limited to exclude work with a practical application.
The Minister justifies the exclusion of the existing exemptions from the Bill and their intended inclusion in secondary legislation on the grounds that the definition of public domain and basic scientific research are derived from international agreements which might be changed. That is the exact point. The purpose of having the exemptions enshrined in the Bill is to make it hard for them to be removed or changed on the whim of a group of international officials. It is far from reassuring that the Minister puts his department's legislative convenience above the importance of what we are talking about—academic freedom.
I ask the Minister to note that I have placed a restriction on the power to publish scientific work for copyright or patent purposes by excluding cases where other legislation permits the Government to impose such a restriction—for example, certain restrictions on obtaining patents or cases governed by the Official Secrets Act. I should like to think that the wide powers under Clauses 1 and 2 to review scientific papers are either an excess of zeal or an oversight by the department and are not due to some bureaucratic motive or something more sinister.
I cannot accept that the fears of academics—I think that I can fairly call them learned and highly intelligent academics—which have been expressed forcefully to me are due to a misinterpretation of the powers that the Government seek. In either case, the amendment in the proposed new subsection (3) would set the matter beyond any doubt.
The other part of the amendment ensures that we are not bogged down by seeking some excessively restrictive interpretation of public domain. I believe that the paragraph restricts the phrase to its ordinary, every day meaning. The Bill must not be used to introduce a restriction into academic teaching or to regulate the dissemination of well-known scientific material, including computer software. There may be a good case for strengthening the protection of patents, copyrights and other intellectual property, especially from piracy via the Internet. But this Bill, which exists for an entirely different purpose, is not the place to police such illegal activities.
I understand that the Government will shortly introduce regulations which will implement the European copyright directive which is the right way to deal with the piracy problem. The first paragraph of the amendment secures the right to publish scientific discovery and the right for academics and others to
My brief informs me that most of the research students in science and technology at our top universities are foreign nationals. I understand that at Oxford and Cambridge three-quarters of them are from overseas. I shall not become involved in a debate about which are what my brief calls the top universities. But places in our universities, especially in science subjects, are rightly much sought after by foreign graduates in order for them to conduct their advanced studies and postgraduate research in this country. This country, with such a high reputation for academic excellence, will be the poorer if we drive students and tutors away to other countries by threatening them with censorship and even 10 years' imprisonment for publishing their theses.
Another question which arises from this apparent preponderance of foreign science and technology students is whether there are to be licensing controls on which students can study which subjects, and how that would affect students coming from the EU. The late Lord Reid once observed:
How do the Government propose to enforce the provisions of the Bill concerning the dissemination of academic information? Are correspondence and scientific papers to be censored? Is there to be eavesdropping on telephones, the Internet and e-mails? What control is there to be over an overseas student when he returns home, disseminating what he has learned here? Does this already control-freak Government propose to regulate the world of teaching, study and research by the introduction of thought police? How else will they discover what is going on? How long do they think that our academics and science graduates will remain in this country and not "export" themselves rather than submit to the regime proposed by the Government? I do not exaggerate.
What degree of control will the Government have, whether or not they choose to exercise it, over international co-operation between our universities and institutions overseas? I draw the Committee's attention to the voluntary vetting scheme under which universities are encouraged to seek guidance from Whitehall before offering research places in sensitive subjects and dual-use technology to foreign nationals.
The amendment to subsection (4) restores academic freedom for our teaching establishments with the requirement that the freedom does not apply when the institution knows, or common sense should tell it, that a particular subject is not one suitable for general dissemination. After all, one can get information on how to make dirty atomic weapons, nerve gas and even conventional explosive devices from the Internet. Restrictions on our universities will not hinder that in any way. I reject the argument—should the Minister consider trotting it out—that the Bill will bring the United Kingdom into line with European regulations made in 2000 which extend export controls to include intangibles.
The prime mover in pushing those extensions in the first place was the United Kingdom. But the European regulations do not require the United Kingdom to impose regulation on domestic transfer, nor on publication controls or restrictions on information already in the public domain. Indeed, the provision exempting matters in the public domain is plain common sense. To try to restrict that in any way would make the law a complete ass.
I summarise the problems which the Government have created by the proposals. I quote from a paper which appeared in the influential and learned journal, the New Scientist, last month, contributed by Dr Ross Anderson, a computer scientist at Cambridge, and co-founder of the Foundation for Policy Research and by Nicholas Bohm, a member of the Law Society's Electronic Law Committee. They say that the Bill will give the Government a right of prior review of scientific papers and the right to censor them. Those controls will extend to software, e-mails, designs and presentation slides. They could prevent scientists from assessing and replicating colleagues' work and it threatens to undermine the very fabric of the scientific process.
The problem of the so-called "dual use list" is that it covers anything that the MoD thinks is high-tech. I do not accept, and I hope that the Government will not say, that these matters can be dealt with in regulations. I believe that they are of sufficient importance to be dealt with in the body of the Bill, especially in view of the well-known problem of modifying and amending secondary legislation.
The Quadripartite Committee of the other place said:
The Minister prepared a riposte to the article in New Scientist, as I mentioned earlier when I referred to my concern, which was unfortunately apparently unable to offer him the space for its publication before today's debate. He has, however, been courteous enough to send me and others a draft and he will no doubt make his own comments shortly. But having consulted with Dr Anderson and Mr Bohm over the weekend, perhaps the kindest way I can describe his riposte to their reasoned complaints and fears is that it contains many red herrings scattered like straws in the wind, if I am permitted to mix metaphors.
At this point I believe that I should mention briefly Amendments Nos. 48E, 48F and 48G to my Amendment No. 48ZA, proposed by the noble Baroness, Lady Sharp of Guildford, and the noble Lord, Lord Redesdale. They certainly have some merit. At a later stage, when my amendment will be reintroduced, we shall together consider the matter and decide how we can incorporate their ideas into my amendment. In the meantime, I am glad that it appears that, on this occasion at least, we are together on this problem.
The Government said that they conceded that a licence should not apply to information in the public domain. However, that is not in the Bill as it ought to be, which is, therefore, why it comprises part of my amendment. I hope that even if the Government will not accept these amendments in their present position in the Bill, and even perhaps in their present form, they will agree to some alternative method of assuaging the fears of the very responsible body which has raised the issue. I beg to move.
(3) The power to make an order which—
(a) amends an earlier order; or
(b) revokes and re-enacts (with or without modifications) an earlier order,
is restricted by subsection (1) only if and to the extent that the order strengthens the controls previously imposed or imposes new controls.
(4) In subsection (3) "an earlier order" does not include an order"
After Clause 5, insert the following new clause—
"RESTRICTIONS ON CONTROLS RELATING TO INFORMATION
(1) An order made under section 2 or 3 of this Act may not impose any control on—
(a) any information in the public domain anywhere in the world (whether or not it is the subject of any patent, copyright, or other form of protection for intellectual property),
(b) the placing of any information in the public domain by publication (including for the purposes of a patent copyright or other form of protection of intellectual property) unless any form of restriction is permitted by virtue of any other Act.
(2) An order made under section 2, 3 or 4 of this Act may not impose any control on any information transferred orally or in writing or electronically in the ordinary course of academic teaching or research unless the person transferring the data knows or ought to have known that such information would have a relevant consequence as defined in the Schedule."
"there is reason to believe that the technology may be used outside the United Kingdom".
"Income tax, if I may be forgiven for saying so, is a tax on income".
This Bill is supposed to be about export controls, that is, the control of exports. Why are the Government trying to impose restrictions on the normal exchange of information in the world of research and academic study? They would not dare to introduce such a concept in a stand-alone Bill.
"We recommend the incorporation into the Bill of the safeguards for bona fide academic activity set out in the commentary on the draft Bill and in the evidence of the Secretary of State".
Why have the Government rejected the recommendations of that very influential committee? Why have the Government resiled from what the former Secretary of State, Mr Stephen Byers,
apparently told the Quadripartite Committee by attempting to take draconian powers in the Bill, which they suggest that they may modify in secondary legislation?
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