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Lord Campbell of Alloway: My Lords, I support the amendment. However, is not the proposal in the Bill to give a Minister of State powers of preview of scientific publications, with powers to regulate, worthy of anathema? I am not an academic, but I have always defended academic freedom. This step does not seem requisite and assuredly goes far too far. It moves towards the inhibition of free trade, not only in goods and services but also in research, opinions and information. We should surely be grateful to those who have tabled the amendment. I shall support it.
Lord Sainsbury of Turville: My Lords, the Government are fully aware of the strength of feeling aroused by the potential effect of the Bill on academic freedom. The noble Baroness is not right in saying that we have paid no attention to what was said in Committee when we are proposing a specific new clause to deal with the concerns expressed. On the basis of careful legal advice, the Secretary of State and I have made clear our view that the provision is compatible with the Human Rights Act. The idea that the Bill is not compatible with human rights legislation is wrong.
Perhaps I may point out that subsections (2)(c) and (d) of Clause 2 do not cover the licensing of students. The clause contains no power to license students, and no such power is contained in the Bill.
I say to the noble Earl, Lord Russell, that in a Bill of this kind it is no good pointing to one clause and saying that under its provisions the Secretary of State can do anything, without pointing also to the restrictions, of
which he will be well aware, contained in Clause 5 and in the schedule. There, it is clearly delineated—for the first time in a Bill of this sort—that restrictions which have been open-ended in the past are in this case firmly tied to a list of categories of goods to be excluded and to areas covered by the schedule. One has to take the Bill as a whole. One cannot simply point to Clause 2 and say that under its terms the Secretary of State can do anything.The final point that I draw from the debate is that conversations in the corridors may seem attractive, but they do not always convey information with the exactitude that one would wish. Therefore, I shall again set out clearly what we believe to be wrong with the noble Baroness's amendment.
We have listened to the concerns raised and, as a result, have proposed an amendment on the key issue of academic freedom. Our Amendment No. 22 provides, as we were asked to do, on the face of the Bill the protection of the principle of freedom to publish and to communicate information that has already been published.
So I make it absolutely clear that our Amendment No. 22 will make it almost impossible—except in very rare instances, when it can be justified by the Secretary of State—to restrict information that is already in the public domain or is being put in the public domain. I believe that that is what academic freedom is about. Academic freedom is not about allowing—as the proposed new clause would allow—academics secretly to pass information which is not in the public domain to academics in other countries.
Baroness Sharp of Guildford: My Lords, does the Minister recognise that information which is in the public domain is already there and cannot be removed? His proposed new clause is therefore irrelevant in this respect. The vital point is that the process of scientific development and methodology very often requires the exchange of information between academics in different countries before it is published. That is the basis of our concern about academic freedom.
Lord Sainsbury of Turville: My Lords, information is put into the public domain in almost all of the cases of academic freedom that we are discussing. People have frequently said, "The provision will stop us publishing information in a journal. It will stop us presenting a paper at a conference". Those are two examples of information being put in the public domain. However, one must distinguish those examples from situations in which information is passed to a person in another country and is restricted to those two people. I shall come to specific examples of the type of information sharing that Amendment No. 3 would allow. They will, I hope, demonstrate that the amendment would put an enormous hole in the Bill.
I should explain why we have taken this approach, as it will enable me to explain our serious difficulties with the approach proposed by the noble Baroness,
Lady Miller. Our amendment addresses the concerns of the academic community about freedom to publish by requiring the Secretary of State to have regard to the need to avoid unreasonable restrictions on putting information in the public domain, or communicating material already in the public domain, when making secondary legislation under the Bill. Any order under the Bill which attempted to place an unreasonable restriction on publication or communication could therefore be opposed in the courts.At the same time, the amendment retains the crucial degree of flexibility required to enable the Government to place restrictions on publication when necessary to control activities that might cause real harm, such as contributing directly to the development or production of weapons of mass destruction. Moreover, our amendment applies to all persons and all control orders under the Bill, not just to controls under Clauses 2 and 3 or to the academic community, as Amendment No. 10 does.
I believe that the amendment proposed by the noble Baroness, Lady Miller, shares to some extent the same aim as ours. None the less, it would have a number of very damaging consequences that would undermine the Government's ability to maintain a comprehensive and responsible export control regime. I do not believe that that can be the Noble Baroness's intention.
The amendments provide for protection of information being placed in the public domain or already in the public domain. However, it provides exceptions to this only for restrictions,
- "required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community".
In fact, many of the international export control regimes to which we belong, such as the Wassenaar arrangement, are political commitments. However, as they are also effectively voluntary arrangements not governed by treaties the proposed exceptions would not apply to them. On the other hand, the amendment would permit restrictions on publication or placing information in the public domain if that were required by international treaties, regardless of whether the proposed restrictions were reasonable.
In contrast, as I hope to explain again in more detail later, the Government's amendment applies to all controls under the Bill including those required by the international regimes. Therefore, in that respect, our amendment—which the noble Baroness, Lady Miller, has described as "feeble"—provides greater protection than does hers. Consequently, in future negotiation of international treaties, UK negotiators will have to consider whether proposed restrictions on freedom of information are reasonable and can be justified.
A consequence of Amendment No. 10 is that its subsection (1)(c) would effectively exempt the academic community from transfer or technical assistance controls entirely, except in so far as they relate to weapons of mass destruction. That would create a significant and unacceptable loophole in the Bill. In fact, we do not intend to introduce any controls on technical assistance other than in relation to weapons of mass
destruction. However, we do intend to introduce controls in Clause 2 on the electronic transfer of military technology whose tangible export from the UK is already controlled and which is not in the public domain or classed as basic scientific research.It is unlikely that that control will impact much on the academic community, as any academic involvement in the development of controlled military technology is expected to be very limited. Nevertheless, given that international research collaboration involving exchange of controlled military technology between industrial establishments would require a licence, we believe that it would be unjustifiable to allow the same research project to be carried out unlicensed if carried out by an academic establishment.
Yet the amendment would permit any academic to transfer controlled military technology overseas freely. Consequently, any academic involved in military research who, perhaps for political reasons, wished to support an overseas regime, such as the Arab or Israeli side in the Middle East, would be able to transfer technology to one or other regime without hindrance by the legislation.
Such a blanket exemption from export controls for certain groups flies in the face of our efforts to implement an effective export control regime. The Quadripartite Committee in another place concurred with this view, stating in its report on the draft Bill that it saw no case for complete exemption of academic activity from export controls. I cannot believe that noble Lords really wish to allow particular groups to transfer technology which can be used to build conventional weapons or for internal repression or terrorism. I am sure that the industrial community would be troubled to discover that the academic community was trusted to send controlled military technology abroad at will while they were not.
I am amazed that the noble Baroness, Lady Miller, is supporting such an amendment. She must be aware that the above possibility exists as that was the nature of our conversation. I pointed out to her that that would be the effect of her amendments. Subsection (1)(c) of the proposed new clause effectively states that there will be no control on the transfer of information,
- "orally or in writing or electronically in the ordinary course of academic teaching or research",
6.15 p.m.
Baroness Sharp of Guildford: My Lords, the provision does not apply only to nuclear weapons—it applies also to chemical and biological weapons. The provision also very clearly states that it will apply,
- "unless the person placing or transferring the data knows or ought to have known that such information is or may be intended for use in connection with",
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