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Lord Hunt of Chesterton: Before the Minister sits down, perhaps I may ask a question. The noble Lord has just commented very helpfully about the question of the control of foreign students coming here and the fact that under the Bill any controls will be, as it were, explicit and there will be a proper arrangement. Is he saying that there will be some change as a result of the Bill from the present practice? The present practice, as has been explained, is not deemed satisfactory at all.
Lord Sainsbury of Turville: Here there is a voluntary scheme. The nature of voluntary schemes is that they require no legal battle. I ask the noble Lord to read the legislation because he will not find in it anything which gives us the power to license foreign students. It is simply not in the Bill. I can only ask him to point it out to me, as my tutor used to say at Cambridge, and I will pay attention to it. But it is not there in the legislation.
Baroness Miller of Hendon: My Lords, I thank very much all noble Lords who have supported me in relation to this new clause. My noble friends Lady Carnegy and Lord Renfrew, the noble Baronesses, Lady Sharp and Lady Warwick, the noble Lords, Lord Watson, Lord Judd, Lord Hunt and Lord Morgan. I apologise if I have left anyone out.
I have taken on board what the noble Lord, Lord Judd, said. I have listened with great interest, but, as he can imagine, with some disappointment to what the Minister said. First, just on a light note, the fact that he thought that I did not read his memo is incorrect. It was as a result of reading his memo that I got in touch with Dr Anderson in America. I spoke to him. I followed the matter up and went to a great deal of trouble to make sure that we understood absolutely—
Lord Sainsbury of Turville: It was the reference to it being "red herrings blowing in the wind" that made me think that maybe the noble Baroness had not realised the full importance of the matter.
Baroness Miller of Hendon: The noble Lord should know me by now. When I do not find merit in what is said, I try to put an amusing aside to it rather than pull it to pieces in a very serious way.
The Minister started by suggesting that the people who had briefed me had clearly misunderstood or misinterpreted what the Bill said. During my speech—I apologise for taking a long time, but on such an
important amendment I wanted to set out all the arguments given to me—I actually said that these were the fears of highly intelligent academics and that I could not believe that they had so misinterpreted things. Indeed, listening to noble Lords from all sides of the House, I believe that they understood all too well. I am very well aware that the noble Lord, Lord Sainsbury, is the science Minister. I intend to go away and read very carefully what he said. But I believe that he should go away and read very carefully, not only what I have said, but what every other noble Lord from all sides of the House has said.One of the Minister's points—he repeated it again—more or less suggested that it was for legislative convenience that the provision came into secondary legislation rather than on the face of the Bill. Otherwise, when new things happened internationally one would have a difficulty and it could not be implemented immediately and so on. There must be a way that this can be on the face of the Bill. It should not be in secondary legislation, which, as my noble friend pointed out, we can neither amend nor have real control over. That just will not do for an issue such as this.
I suspect that it was a mistake on the part of the noble Lord, Lord Watson, to say that I was somewhat apocalyptic, which I think was copied by my noble friend Lord Renfrew, only because it gave the Minister the opportunity to suggest that I had over-exaggerated when what I was talking about is a very serious matter.
Baroness Sharp of Guildford: I should like to echo the words of the noble Baroness, Lady Miller. We have heard the weasel words of the Minister on this matter. We shall go away, read and look hard at them. I shall also consult my noble friend Lord Lester of Herne Hill about the issues on the human rights legislation and whether or not this is really redundant and otiose as a result of that legislation. I personally at the moment do not feel convinced by the words of the Minister. I nevertheless beg leave to withdraw my amendment.
Amendment No. 48ZB, as an amendment to Amendment No 48ZA, by leave, withdrawn.
[Amendments Nos. 48ZC and 48ZD, as amendments to Amendment No. 48ZA, not moved.]
Baroness Miller of Hendon: I beg leave to withdraw Amendment No. 48ZA.
Amendment No. 48ZA, by leave, withdrawn
Lord Sainsbury of Turville moved Amendment No. 48A:
- Before Clause 7, insert the following new clause—
The noble Lord said: When the Government tabled this new clause and other amendments last month, we also provided your Lordships and other interested parties with a note which explained in detail the purpose and effect of these amendments. I hope that the note proved helpful to those who have taken an interest in this important subject. As it explained, we believe that the revision of former Clauses 7 and 8, which this new clause represents, will both clarify and improve the Bill.
As noble Lords will be aware, former Clauses 7 and 8 governed the operation of the export licensing process and enabled the Government to publish guidance about the matters to which regard might be had when taking export licensing decisions, and the reasons which might be regarded as justifying particular export licensing decisions. This new clause has a similar function, but we have made two significant changes in response to the views expressed at Second Reading in this House and more widely.
Although I am in no doubt that under the Bill as currently drafted it would be possible for the Government to reject an export licence application—for example, for an export of arms, solely on sustainable development grounds—I am very much aware of the depth of concern on this issue. In particular, I am aware that noble Lords, Members of another place and outside organisations and members of the public have been worried that a government in the future might seek to exclude consideration of relevant sustainable development issues from the export licensing process.
Through this new clause we aim to address those concerns, strengthening the role played by guidance under the Bill and putting beyond all doubt the Government's continuing commitment to sustainable development, and all the other relevant consequences
As noble Lords will be aware, the Government announced to Parliament on 26th October 2000 that henceforward they intended to assess all export licence applications against a consolidated set of export licensing criteria. It has always been the Government's intention that the important role currently played by the consolidated criteria should continue after the Bill becomes law, which was why the current Clause 8 contains a reference to the consolidated criteria. Noble Lords will see that a similar reference has been carried forward to the new clause. However, we have now significantly strengthened the role played by the criteria under the Bill by making it a requirement for the Secretary of State to issue guidance about the general principles to be followed when exercising licensing powers and by stating that the consolidated criteria constitute such guidance on general principles. Moreover, this change will also ensure that if any government in the future want to change the general principles on which the export control regime operates, they would be obliged to issue guidance stating what the new principles are and lay this guidance before Parliament.
As I have said, it is also the Government's aim, through this new clause, to put beyond all doubt our continuing commitment to sustainable development, and all the other relevant consequences listed in the schedule, in the licensing process.
First, we propose to put an explicit reference in this new clause and thus on the face of the Bill to "sustainable development". That the Bill now includes the words "sustainable development" is certainly of symbolic significance. However, the fact that we have actively decided to amend the Bill to state that future Secretaries of State must give guidance about the consideration, if any, to be given when exercising licensing powers to issues relating to sustainable development must put beyond all doubt the continuing commitment we have to this issue.
We have also made plain in the new clause that when Secretaries of State issue guidance about the general principles to be followed when exercising licensing powers, the guidance must include guidance about the consideration, if any, to be given to sustainable development and issues listed in the table in the schedule. That change makes it totally clear that in issuing guidance on the exercise of licensing powers, sustainable development is entirely equal with the consequences listed in the schedule table. That change also maintains an indirect link between the relevant consequences set out in the schedule and the licensing process. As I said, we have been concerned to end the confusion that has arisen to date about the differing roles of the schedule and of former Clauses 7 and 8. To that end, and because it was no longer necessary, we have done away with the direct link between the schedule and the matters to be taken into account in licensing decisions currently in Clause 7. However, we are aware of concern that were there to be no link at all between the relevant consequences in the schedule and
Taken together with the change that I described, which will make it a requirement for the Government to issue guidance, that change will ensure that all future governments are required to issue guidance on how they propose to consider sustainable development and all the relevant consequences listed in the schedule when exercising their licensing powers. The only way to change that would be by primary legislation.
I add that were a future government to decide that they did not intend to give consideration to sustainable development—or, indeed, any other issue contained in the schedule table—in arms export decisions, they would have to revise and then publish new guidance. They could not do so in secret and would have to be able to justify such a decision. Without such justification, a decision of that nature would be open to challenge in the courts.
In view of that explanation, I hope that noble Lords will agree that the Government have taken great care to address the concerns raised by Members of this House and by others elsewhere on that important issue and will feel able to support the amendment. However, I understand that the noble Lord, Lord Razzall, feels that changes to the new clause might be beneficial and I look forward to hearing why he believes that Amendments Nos. 48B and 48C are necessary. I beg to move.
"GUIDANCE ABOUT THE EXERCISE OF FUNCTIONS UNDER CONTROL ORDERS
(1) This section applies to licensing powers and other functions conferred by a control order on any person in connection with controls imposed under this Act.
(2) The Secretary of State may give guidance about any matter relating to the exercise of any licensing power or other function to which this section applies.
(3) But the Secretary of State must give guidance about the general principles to be followed when exercising licensing powers to which this section applies.
(4) The guidance required by subsection (3) must include guidance about the consideration (if any) to be given, when exercising such powers, to—
(a) issues relating to sustainable development; and
(b) issues relating to any possible consequences of the activity being controlled that are of a kind mentioned in the Table in paragraph 7 of the Schedule;
but this subsection does not restrict the matters which may be addressed in guidance.
(5) Any person exercising a licensing power or other function to which this section applies shall have regard to any guidance which relates to that power or other function.
(6) A copy of any guidance shall be laid before Parliament and published in such manner as the Secretary of State may think fit.
(7) In this section "guidance" means guidance stating that it is given under this section.
(8) The consolidated criteria relating to export licensing decisions announced to Parliament by the Secretary of State on 26th October 2000 shall (until withdrawn or varied under this section) be treated as guidance which—
(a) is given and published under this section; and
(b) fulfils the duty imposed by subsection (3) in respect of any export controls and transfer controls which may be imposed in relation to goods or technology of a description falling within paragraph 1 or 2 of the Schedule."
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