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Lord Judd: My Lords, we have heard two very passionate and powerful speeches in favour of the amendment and the principle of academic freedom. For much of my life I have been involved with centres of higher education and universities and I would take second place to no one in my commitment to the principle of academic freedom. After the passion and sincerity with which the case has been argued, I have therefore some hesitation in making one or two cautious observations about the amendment as drafted.

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I should like those who support the amendment to consider whether it is perhaps drafted too broadly and may inadvertently tip the balance too far away from the measures necessary effectively to control the arms trade.

In her amendment the noble Baroness, Lady Miller, provides exceptions only for restrictions required by any international treaty obligation of the United Kingdom or a directive of the Council of the European Community. However, many of the international export control regimes to which the UK belongs—such as the Wassenaar arrangement and the missile technology control regime—are voluntary arrangements not governed by treaties, and so the proposed exceptions would not apply to them. Given that most of our export and related controls derive from the international regimes, that would be extremely damaging. It would mean that the UK might even have to block any future negotiations in those regimes to control intangible transfers. Controlling intangible transfers was rightly hailed as an achievement of the Bill and these developments should not lightly be reversed.

Subsection (1)(c) of the proposed new clause would effectively exempt the academic community from transfer or technical assistance controls entirely except as they relate to weapons of mass destruction. Again I ask those who support the amendment, whom I respect—there is much in the amendment that must be taken seriously—whether this can really be right.

It is not only with controlling the spread of weapons of mass destruction that the Bill is concerned. In Clause 2 of the Bill the Government propose to introduce controls on the electronic transfer of military technology, the tangible export of which from the United Kingdom is already controlled. It is highly unlikely that this control will seriously impact on the academic community as any academic involvement in the development of controlled military technology is expected to be very limited.

However, it is important not to create a dangerous loophole in the Bill that would be ripe for exploitation. International research collaboration involving exchange of controlled military technology between industrial establishments would require a licence. I therefore do not understand why it is justifiable to allow the same research project to be carried out unlicensed if it is carried out by an academic establishment.

It is important to strike a balance between protecting the vital cause of academic freedom and introducing the controls necessary to regulate intangible transfers of technology that could lead to proliferation. I am worried that the amendment as drafted is too broad. I believe that while it is not perfect and observations could be made about it, in this instance the amendment brought forward by my noble friend the Minister comes closer to meeting in a balanced way the anxieties so well expressed in Committee.

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Earl Russell: My Lords, I am grateful to the noble Lord, Lord Judd, for the spirit in which he has addressed this issue. I declare an interest as an academic.

By far the most interesting and difficult parliamentary conflicts are those which are between right and right. I understand that there is an interest of national security involved here. What is a weapon of war is now a matter which is in some doubt. There can be communication which can be used for purposes genuinely destructive to national security, but it is also true that the academic world is increasingly an international, global phenomenon. As John Winthrop once remarked when about to go to the United States, the Church is universal without respect of countries. The same is true of the universities.

The potential for interference with serious research is very real. How to draft a clause which meets a genuine danger without interfering with necessary freedoms is a problem to which not enough thought has been given by any of us. Let me take a parallel case from 1942. Stamp collecting is as innocent a hobby as one can think of, but my parents in Pennsylvania in 1942 had a cook whose hobby was collecting stamps from battleships posted in port. They thought that sounded a little too interesting. They told the FBI, and the man concerned disappeared one hour before the FBI's appearance. That told me two rather interesting things.

This is very much the kind of problem with which the Minister is forced to grapple, but unfortunately the Bill does not come within 100 miles of addressing it. The Bill is drafted in a style of draftmanship about which I have addressed the House before, the kind of draftmanship which only a weak Parliament could ever have allowed to grow up. Look, for example, at the wording of Clause 2(1):

    "The Secretary of State may by order make provision for or in connection with the imposition of transfer controls in relation to technology of any description".

That really is the classic Cambyses clause. The Secretary of State may do whatever he likes. I find it very hard to see what could not be prohibited under those words.

We need to find a way of wording a clause which requires some evidence suggesting guilt in a particular person before the clause comes into force. There is no requirement here to prove the military potential of the information concerned; there is no requirement to show any mens rea in the communicator; there is no requirement to show that the communicator has any suspect record or even any suspect contacts; there is no requirement to show that the person communicating is communicating with a recipient who is suspect. There is no restriction at all on the purposes for which this clause can be invoked. That cannot be right. It must be necessary to show that there is some reason to believe that national security is in danger before the whole hammer apparatus of this clause is brought to bear on restricting the communication.

The Minister offers secondary legislation, but when it comes to reassuring this House with secondary legislation I am afraid that the Government have shot

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themselves in both feet and several other portions of their anatomy as well. The White Paper on House of Lords reform proposes that we should lose our power to reject secondary legislation. I have put down a string of questions for Written Answer about negative instruments. In the previous Parliament, 0.5 per cent of them were the subject of division in another place and not one was rejected. So the only possibility for the rejection of a statutory instrument is in this House. If the White Paper were put into effect, that would go. There would then exist the genuine possibility of the Government legislating by decree. If we let a clause such as this go forward, we should have sold our birthright for a mess of regulations.

The existence of the White Paper must influence the way in which this House votes on clauses that create the power to make regulations. So long as that sword of Damocles hangs over us, we cannot consider clauses allowing the Government to make regulations with the degree of trust that we have given them in the past. To allow this clause to go forward, one would need a degree of trust so great that I do not think any parliament should allow it to any Minister in recorded history, even if he or she were the best that there had ever been.

6 p.m.

Lord May of Oxford: My Lords, Oliver Wendell Holmes once memorably said that the right to free speech does not include the right to cry "Fire" in a crowded theatre. I would add that the right to academic freedom does not include the right to light fires in crowded theatres, nor indeed to publicise new and more fearsome ways of doing so.

In short, I fully recognise—and my academic background is as rich and varied as that of anyone in this House—the need for various kinds of restrictions of the type in the Bill. However, lest we inflict greater damage on society than that which we seek to avoid, we need to be especially careful about how we limit free speech. We need to be especially careful about how we limit academic freedom. The exceptional circumstances need to be spelled out clearly and carefully, and not in sweepingly general terms. That is why—albeit with less passion than some earlier speakers—I support the spirit of this group of amendments.

That said, I share some of the reservations sketched by the noble Lord, Lord Judd, about the detail of the drafting. Subsection (4), for example, opens unintended loopholes. But the essential point is that amendments proposed by the noble Baroness, Lady Miller, and others go in the right direction in terms of affirming the need for academic exchanges and processes to be unhindered except in limited, defined and exceptional circumstances.

The Government's alternative amendment, Amendment No. 22, although well-intentioned, simply enjoins that the Secretary of State shall,

    "avoid any unreasonable restriction on . . . the making of information generally available to the public; or . . . the communication of information that has already been made generally available to the public".

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I have complete and utter trust in my noble friend Lord Sainsbury, our exemplary Science Minister. I have trust in my erstwhile colleagues—most of them anyhow—in the Department of Trade and Industry. I have particular trust in the current Secretary of State at the DTI, who has the unique virtue of being an Australian. But times change; people come, and people go. So I am unhappy with sweeping primary legislation and an invitation to trust decisions.

Nor is it a philosophical abstraction to distrust the possible consequences of such legislation. In the United States—and I have had personal experience of this during my 11 years as vice-president for research at Princeton University—similar laws, until they were recently changed, have been used, for instance, to impede pure mathematicians publishing work or presenting papers at conferences which were deemed to have possible reference to cryptography.

Admittedly, the Government's Amendment No. 22 means that, if a civil servant sought to impede academic publication or presentation in this way, I could seek judicial review and almost certainly win. I could even enjoy the adventure of invoking the Human Rights Act and going to The Hague en route to publishing the work several years later. What fun! That is scant consolation in terms of those apprehensions. In summary, I support the amendment, despite what I consider to be significant problems with the drafting, because I believe that its essential principles are clear.

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