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Lord Sainsbury of Turville: My Lords, will the noble Baroness say which part of the Bill suggests that there is any system in it for the licensing of foreign students as opposed to licences which will be required by the person who is passing over the information? The whole nature of the Bill is about actions which pass
information over. There are licences in that respect, but they are quite distinct from a system of licensing of students.
Baroness Miller of Hendon: My Lords, I shall continue with my speech and come back to that point in a moment. That is why my Amendment No. 4 unequivocally calls for the rejection of subsections (2)(c) and (2)(d).
I shall return to another aspect of those subsections when I explain subsection (4) of the new clause which I am proposing as Amendment No. 10. In view of their importance I should now like to explain them paragraph by paragraph but as shortly as possible.
Subsection (1) begins with the preamble restricting the right to control academic freedom except in three cases. The first is if such restrictions are imposed by any other statute. I have in mind, for example, the Official Secrets Act. The second is if such control is required by virtue of any international treaty obligation of the United Kingdom. I have deliberately stressed that it must be a treaty obligation because treaties receive a cursory examination by Parliament. I do not want to see the Act circumvented by a vague undertaking given by the third secretary in some remote embassy, possibly without authority. Thirdly, I have inevitably had to accept that the sovereignty of our ancient Parliament is now subject to the dominion of Brussels.
With those caveats, subsection (1) restricts the right of the Government to make control orders on the transmission of thoughts and information in three cases. However, as I have said, there will be found to be a fourth when we come to the stand-alone provisions of subsection (4). The three instances where the Secretary of State cannot make control orders are, first, where the information is already in the public domain—and it is not necessary for me to explain that. If technological information is already in the public domain, it is a pointless exercise to try to ban its further dissemination. Phrases such as "putting the genie back in the bottle" or "putting the toothpaste back in the tube" spring to mind.
Secondly, the Secretary of State should not be able to prevent the placing of information in the public domain, including for patent and copyright purposes. That is censorship of the highest order and once again there is no practical means of enforcing such a ban. In these days when one can surf the Internet and find out how to make atomic bombs—at least in theory because, of course, the resources needed are well beyond the means of the average do-it-yourself practitioner—any ban on anonymously opening up a website is impossible to police. In fact, you do not have to use the Internet. Apparently, as we read in the newspaper last week, you can find it at the Public Record Office, courtesy of the Ministry of Defence, one of the agencies which is supposed to monitor licence applications.
Finally, I propose in the interests of academic freedom that the Government should not have the power to censor what may be taught. That is the very
power they are seeking—or, if I do them an injustice, the power they will unwittingly have taken by the Act. Now that they have been told, I expect them to disclaim it and put it beyond their reach.During the meeting to which I referred a moment or two ago, the senior representative of the DTI said, according to the minutes, that:
- "There was no question that undergraduate studies would be affected by the proposed legislation, and that lecturing would also be unaffected as lectures would be treated as putting the matter in the public domain".
Your Lordships will have noticed that I do not seek to empower the academics to run amok with what they teach. I propose to prohibit the dissemination of information which they know or—and here the onus is on the teacher—which they ought to have known is intended for use in connection with the manufacture and use of nuclear weapons or biological or chemical weapons and similar nasties.
At this point I want to tell the House that this morning I was informed that the Minister was lobbying noble Lords who had been supportive of my amendment in Committee in order to suggest that it was flawed because the list of wicked purposes in my new clause was simply not long enough. However, it is taken word for word from Article 4 of the Dual Use Regulation of the European Community and we chose those words specifically to meet the criticism based on the article which the Minister made in Committee. I am surprised that having telephoned other people about it he did not get in touch with me. Had he done so, we might have been able to talk about the matter.
I have deliberately not used the phrase "weapons of mass destruction"—
Lord Sainsbury of Turville: My Lords, I must ask the noble Baroness whether the 10-minute conversation we had in the corridor this morning was not one about exactly this issue. I explained exactly why I had grave reservations. I shall explain those later to the House. I explained that they were not about that particular aspect but about the fundamental issue of academics being taken out of the Bill altogether.
Baroness Miller of Hendon: My Lords, if the noble Lord had waited just a few moments longer, I would have told the House that I did meet him in the corridor some two hours ago, at which point we spoke for 10 minutes on another matter. However, he did not give me a chance to say it.
I have deliberately not used the phrase "weapons of mass destruction", which is what I said to the noble Lord earlier. I had understood that the noble Lord was concerned about that, but he said that he was not. My researches tell me that some governments, including
ours and that of the United States, are conducting a kind of Dutch auction to define how many people can be killed before a weapon can be classified as a weapon of mass destruction. I believe that, at this stage, the figure might be as low as 25. That would mean that a bus running amok in Oxford Street possibly could be so defined. There is no purpose in that.A few moments ago the noble Lord said that I did not mention our conversation. I have mentioned it and I understand that the noble Lord is concerned that my list is not wide enough. That is why I have responded to that for the benefit of those noble Lords whom the noble Lord has already lobbied.
The noble Lord's last-minute concern was that subsection (1)(c) of the proposed new clause would allow an ill-disposed academic to put dangerous information on to the Internet and then pretend that that had been done, "in the ordinary course of academic teaching or research". I should point out that nothing could prevent that being done from an anonymous website in a remote place outside the EU.
More than that, I am legally advised that my carefully drafted clause, which limits my exception to what is done in the ordinary course of academic teaching, along with the further provision that the person must or ought to know that what he is doing may be used for one of the bad purposes I have described, will prevent any such defence. Aside from that, such bad faith action would probably be caught under the Prevention of Terrorism Acts.
Perhaps I may return to the Bill. New subsection (1)(c) allows academics to teach, but restricts them when they know, or ought to know, that what they are teaching could be used for one of the bad purposes that I have comprehensively defined in the clause. Subsection (2) reaffirms the powers of the Comptroller-General under Section 22 of the Patents Act 1977 to prohibit the publication of information in a patent application which might be prejudicial to the defence of the realm or the safety of the public. Subsection (3) operates in a negative way compared with the rest of the new clause. It allows the Secretary of State to make a control order against transferring information or technology outside the EC where the transferor knows or ought to know that they could be used for the undesirable purposes I mentioned earlier.
Finally, I turn to new subsection (4). It underlines the whole concept of the freedom to teach students from abroad or who might go abroad with their knowledge. Perhaps I may refer to a regulation—I shall need to take a deep breath to recite this, although I have had to take several deep breaths in the course of my remarks—Council Regulation (EC) No. 1334/2000 of 22nd June 2000 setting up a Community regime for the control of exports of dual-use items and technology. The first preamble reads:
- "Whereas dual use items (including software and technology) should be the subject of effective control when they are exported from the Community".
Noble Lords will recall that in the days of the Soviet Union, emigration visas were frequently denied on the grounds that the applicant was possessed of certain vital information. Quite rightly, the EC is going to make it clear that those pretexts will not inhibit the free movement of people. It was also suggested to me, perhaps facetiously, that without it a person facing deportation to somewhere outside the EC could prevent it by having the formula for sarin gas tattooed on to a part of his person; I shall not say where.
In this series of amendments I have met the somewhat specious arguments produced by the Government at the previous stage. In response to a question then put to me by the noble Lord, he will see that subsections (2)(c) and (d) enable students to be licensed, a point with which we did not agree. His arguments were designed to support the Government's apparent desire to subject the whole of academia to the rigid controls of Whitehall. I have placed the onus of ensuring that undesirable students are kept out fairly and squarely on the Government, which is where it belongs. It should not be for the universities to have to go through such a procedure. It is for the Government to grant, refuse or cancel visas.
I have tried to produce a rational, practical and, above all, credible regime which prevents the export of dangerous knowledge and technology while maintaining responsible academic freedom, something this country is famous for. I beg to move.
5.45 p.m.
Baroness Sharp of Guildford: My Lords, my name is attached to all the amendments in this grouping and I should like to speak to them. We do not dispute the assurances with regard to academic freedom given to us in Committee by the Minister, but through this series of amendments we seek to put those assurances on to the face of the Bill.
These problems have arisen because advances in technology mean that, today, the concept of the "transfer of technology" is no longer a matter of the physical passing-over of equipment, plans or blueprints. Technology now comprises processes of both the physical and the biological sciences. The Bill is applied deliberately to "technology of any description". The transfer of technology is also defined very broadly to include oral communication, telephone calls, e-mails, letters and data transfer via computer.
Given the range of technologies today—a whole set of data can be transferred via computer from one country to another—and given the ease with which technologies can be transferred by electronic means, noble Lords will recognise that the potential range of intangible goods covered by Clauses 3 and 4 of the Bill—research ideas, software, course materials such as handouts, lecture notes and slides, as well as academic papers and exchanges between academics in the process of collaborative research—is huge. Again,
potentially Clause 2 will give the Secretary of State powers of prior review over relevant scientific publications. In deciding whether to grant a licence, the DTI will have to make such a review.The Government have given us considerable assurances that this is not their intention. They say that the Bill is to apply only to a very narrow range of academic research that could be caught by its provisions and that anything in the public domain, including lectures, lecture notes and handouts, would certainly not be caught. It is to apply only to certain narrow areas of sensitive information where the person concerned either knows or has been informed by the Secretary of State that the area is sensitive and thus one in which they should take care about telling others about what they are doing.
That is fine and we accept those assurances. However, we want to see the assurances put on to the face of the Bill. Regulations have been proposed and the assurances are to be incorporated into them. Those regulations are to be adopted by negative resolution. However, I say to noble Lords that that is not enough. The fact remains that the terminology of the Bill is extremely worrying. Even if we were to accept the assurances of the Government that their intentions are benign, our job in this House is to scrutinise legislation and ensure that future generations are protected from the potential activities of governments that are perhaps less benign. It is important that we—the legislature—do not let the executive get away with passing such wide-ranging powers. It is important that the assurances are not given in regulations, but that they are put on the face of the Bill. That is what this series of amendments seeks to achieve.
We have bent over backwards to take into account the points raised by the Minister in Committee with regard to international treaties. We recognise that there are some areas where information is sensitive. People who have been so informed cannot simply hand over information. We have tried to incorporate that into the amendments. However, we feel very strongly that they should be put on to the face of the Bill. It is for that reason that I urge noble Lords to support the amendments. They are important to basic academic freedom which, as the noble Baroness, Lady Miller, pointed out, is something that is fundamental to this country. We ought to make it clear to the executive that the legislature does not think that the Government are doing the right thing.
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