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Division No. 1

CONTENTS

Aberdare, L.
Ackner, L.
Addington, L.
Alderdice, L.
Alexander of Weedon, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bagri, L.
Barker, B.
Beaumont of Whitley, L.
Blatch, B.
Boardman, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brightman, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Burnham, L.
Buscombe, B.
Butterworth, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Chadlington, L.
Chan, L.
Clement-Jones, L.
Colwyn, L.
Cooke of Thorndon, L.
Cope of Berkeley, L.
Cox, B.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Dholakia, L.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Falkland, V.
Ferrers, E.
Flather, B.
Fookes, B.
Freeman, L.
Gardner of Parkes, B.
Garel-Jones, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hambro, L.
Hamwee, B.
Harris of Richmond, B.
Haslam, L.
Hayhoe, L.
Higgins, L.
Holderness, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jellicoe, E.
Jenkin of Roding, L.
Joffe, L.
Kimball, L.
Kingsland, L.
Lane of Horsell, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Manchester, Bp.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Monro of Langholm, L.
Montrose, D.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Neill of Bladen, L.
Noakes, B.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Palumbo, L.
Patten, L.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Razzall, L.
Reay, L.
Redesdale, L. [Teller]
Rees, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L. [Teller]
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Sharman, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Sheppard of Didgemere, L.
Shutt of Greetland, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stern, B.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Trefgarne, L.
Trumpington, B.
Vivian, L.
Walker of Worcester, L.
Williams of Crosby, B.

NOT-CONTENTS

Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Borrie, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brookman, L.
Butler of Brockwell, L.
Campbell-Savours, L.
Carter, L. [Teller]
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dormand of Easington, L.
Dubs, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grocott, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Jay of Paddington, B.
Jordan, L.
Kilclooney, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
May of Oxford, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Palmer, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Quinton, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Serota, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Temple-Morris, L.
Tenby, V.
Turner of Camden, B.
Uddin, B.
Vincent of Coleshill, L.
Walpole, L.
Warnock, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L. (Lord Privy Seal)
Williamson of Horton, L.
Wilson of Tillyorn, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

18 Apr 2002 : Column 1107

5.21 p.m.

Lord Sainsbury of Turville moved Amendment No. 2:


    Page 1, line 11, leave out "An order under this section may" and insert "The Secretary of State may by order"

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5, 7, 8, 9, 11 and 12. These grouped amendments are technical, drafting amendments that are needed in order to make the appropriate distinctions between the powers in the Bill in respect of areas within national competence, and those in respect of the implementation of directly applicable Community controls in areas of Community competence.

Amendments Nos. 2, 5, 8 and 11 introduce a series of similar amendments to Clauses l, 2, 3 and 4. These make it clear that an order made under the Bill introducing export, transfer, trade or technical assistance controls is different from an order under Clause 1(5), 2(5), 3(6) or 4(5) giving effect to directly applicable controls imposed by Community regulation. In the case of the latter, not all of the subsidiary provisions in the clauses should apply. Amendments Nos. 7 and 9 to Clause 3 similarly make clear that subsections (5) and (7) do not apply to the clause as a whole as they do not apply in respect of orders under Clause 3(6) but apply only in respect of controls introduced under the Bill within areas of national competence.

Amendment No. 12 is a consequential of Amendment No. 11. Amendment No. 11, as I have explained, makes clear that an order introducing trade controls will not be made under the clause as a whole, but will either be made under Clause 4(1) that allows for controls to be introduced under national law, or under Clause 4(5), which provides for the introduction of provisions in connection with controls introduced by a directly applicable

18 Apr 2002 : Column 1108

Community provision. This means that it is necessary for the whole definition of what is meant by,


    "activities which facilitate the acquisition, disposal or movement of the goods",

contained in Clause 4(7) to apply directly to Clause 4(5), as well as orders introducing controls within national competence. Amendment No. 12 achieves that aim.

As noble Lords are probably aware, the amendments before the House are very technical in nature. However, they are needed to ensure an appropriate distinction is made between our national powers and those that derive from Community obligations. I therefore invite noble Lords to support them. I beg to move.

On Question, amendment agreed to.

Clause 2 [Transfer controls]:

Baroness Miller of Hendon moved Amendment No. 3:


    Page 2, line 2, at beginning insert "Subject to the provisions of section (Academic Freedom),"

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 4, 6 and 10. Amendments Nos. 3, 4 and 6 are simply paving amendments, although one of them is of slightly more substance and I shall deal with it later. The purpose of these paving amendments is to make way for Amendment No. 10, which I have no hesitation in describing as major and of the utmost importance both for academic freedom and for scientific research; and, indeed, for constitutional freedom.

The content of the main amendment has been altered from what was discussed in Committee. We have sought to take into account the words and advice of the Minister. I have also taken account of numerous further briefings. The amendment incorporates the suggestions made by the noble Baroness, Lady Sharp of Guildford, in her Committee stage amendments and I am very pleased to see the noble Baroness's name attached to the current amendments.

I am not just speaking for the two of us; I am speaking on behalf of Universities UK, formerly known as the Council of Vice-Chancellors and Principals, and for the Association of University Teachers, which represents 45,000 academic and academic-related staff; and, indeed, for the Foundation for Information Policy Research. Therefore, I can say that these amendments speak for a wide branch of academia, who feel most strongly about the issue. It is a subject of the gravest concern and of the highest anxiety to the whole of scientific academia.

Despite the credentials of this important amendment, it was arbitrarily—I hope that the Minister will forgive me for saying so—dismissed by the Government. There was not even an offer to find a way to meet the justifiable fears of those who, through this amendment, seek the protection of Parliament.

18 Apr 2002 : Column 1109

The new clause proposed by the Minister in Amendment No. 22 I can only describe it as pathetic and meaningless. I ask noble Lords to consider the idea that the Secretary of State should,


    "have regard to the need to avoid any unreasonable restriction"!

We all know about unreasonable restraint; indeed, we all know about "unreasonable". But we just have to get on with it. The fears I have mentioned were not allayed by the anodyne words of the Minister in his response in Committee. As a result, I received even more briefing from academia. Therefore, I have no hesitation in asking your Lordships to consider the current amendment.

As noble Lords are aware, the Bill deals with controls on the export of goods and equipment—from weapons to items of cultural importance. It also deals with the export of technology. Moreover, under Clauses 2 and 3, it ventures into the fields of intangibles, such as information, and, as it stands, into the field of thoughts and ideas.

The amendments and my proposed new clause revolve around the principles of freedom of expression, freedom of teaching, and freedom of research. Those freedoms are fundamental human rights to which the political objectives of the state should normally be subservient. Unless my amendments, or others incorporating the same principles, are included in the legislation, then, despite the certificate given by the Secretary of State in the preamble to the Bill, I have no doubt at all that it would not stand up to the light of a challenge under the convention on human rights.

The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do. By virtue of Clause 2(2)(c), they are even attempting to control the exchange of ideas within the United Kingdom. It is for that reason that a solid body of academia is totally opposed to some of the Government's proposed provisions, which are inappropriate in a country where universities have been centres of learning, research and discovery for over 900 years. As drawn, the Bill will at the least inhibit the latter; at the worst, it will reduce the ability of our universities to teach future generations. Moreover, it will drive undergraduates to study elsewhere in the world. By preventing the export of ideas, I suggest that it will also result in graduates and researchers exporting themselves elsewhere to carry out their work.

Perhaps I may now explain the main provisions of my amendments. Amendment No. 4 proposes the deletion of Clause 2(2)(c) and (d). Together, those paragraphs give the Government power to control what the Bill calls "the transfer of technology", which

18 Apr 2002 : Column 1110

includes teaching technological subjects to anyone inside the United Kingdom where there is reason to believe that the technology may be used outside the United Kingdom. But the teachings of our universities and colleges are expected to be used outside the United Kingdom. Never mind the thousands of British scientists and technicians who have travelled the world for hundreds of years taking their knowledge and skills with them. What on earth do the Government think that the thousands of foreign students who come to this country every year will do with the technology that they acquire here? They will naturally take it back home and use it either there, or elsewhere in the world.

It is undesirable, I accept, that the citizens of some countries should be taught certain subjects—atomic science, or aspects of biology or chemistry—that could be translated into the manufacture of chemical or biological weapons, or that they should receive instruction enabling them to fly aircraft into skyscrapers. Of current vital and commercial importance is the science of cryptology and authentication codes. They were first devised in 1964 to prevent the misuse of atomic weapons by potential Dr Strangeloves. But today we all use them on the remote controls in our cars.

That is a minor but telling example of how small businesses exporting common-place goods and services in the public domain may unwittingly fall foul of wide-sweeping regulations and their owners may be exposed to possible criminal sanctions. The encryption of electronic documents will play a vital part in international commerce in the future and perhaps, together with other wide-ranging categories of scientific knowledge, the Government are right to insist that care is taken about with and to whom sensitive information is shared or taught.

If as a matter of policy the Government want to prohibit students from this or that country from coming here to study this or that subject, the onus of exercising that control must rest with the Government and not with the teaching institutions which have neither the skills nor the resources to screen their potential students. They have no means of controlling what students will do with their knowledge once they have completed their courses. Indeed, the whole concept that once you have imparted knowledge or information to someone, you can control what he does with it is such manifest nonsense that the whole of the two subsections to which I refer are completely unenforceable absurdities. Do we seriously expect our universities to ask their chemistry students whether they intend to make poison gas?

The provision is complete control-freakery, raised to the umpteenth degree and totally impractical to enforce to boot. If the Government want to control who is taught by whom, as they control who comes into the country, except perhaps via the Sangatte Camp and Eurotunnel, the instrument that they must use is visas—the issuance of visas.

18 Apr 2002 : Column 1111

In a letter which the Minister wrote to Dr Ross Anderson of Cambridge University on 28th February, he said:


    "There are no powers in the Bill to license foreign students. The Bill is not designed to enable the introduction of a compulsory scheme to vet students",

Apart from noting the qualification about a compulsory scheme, and whatever the Minister may believe the Bill is or is not designed to do, the clear wording of the Bill unquestionably means that there is to be some form of control on the entry of some students from some countries if they want to study particular subjects.

Before the Minister in his response tries to suggest that I have got it all wrong, I invite him to look at the minutes of a meeting which took place on 21st September last between two of his officials, a representative of the Foreign and Commonwealth Office and another from the Department for Education and Skills on the one side and four representatives of Universities UK on the other. I shall not trouble the Minister or your Lordships with the five pages of the minutes, but I shall gladly make them available to anyone who wants to see them.

In essence, the points being made by the Government were:


    "The clause has now been modified . . . and it now states that a licence will be necessary only where it is known or the Government has informed the institution that there is an intention to use subjects in relation to a weapon-of-mass-destruction programme".

The official went on to say that the onus has shifted from the institution to the Government. Contrary to what the official says, subsections (2)(c) and (2)(d) of Clause 2 have not altered by one single punctuation mark between the time the Bill was introduced in the other place on 26th June 2001 and today. And nowhere does it say that the onus is on the Government to notify the universities about anything. In fact, the Government in Committee in your Lordships' House totally opposed any modification to these provisions.

The representatives of the Department of Trade and Industry also said that the need for a licence would apply only to particular end users. It is abundantly clear that contrary to what the Minister told Dr Anderson in his letter of 28th February, the Bill will introduce a system of compulsory vetting of some students and I hope that in the light of the contents of the meeting to which I have referred, the Minister will not try to persuade your Lordships to the contrary.

It is also clear that there is nothing in the Bill as it stands which shifts the onus of vetting and licensing away from the universities—


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