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Lord Sainsbury of Turville: My Lords, this amendment was discussed in Committee on 7th February and is with us once again. It would place conditions on the Secretary of State's power to disclose information obtained through an order under the Bill, but it now has a provision under paragraph (ii) intended to allow disclosure of information where that is required by the UK's international obligations.
As I explained previously when we discussed this issue, the Government require the power to obtain and share information connected to export licensing issues for two reasons. By virtue of its membership of a
number of international organisations, the UK is committed to disclosing certain information to those bodies. Specifically, under the UN arms register and the Wassenaar arrangement, we are required to provide details of the numbers of certain categories of military or dual-use goods exported each year. Paragraph (ii) of the amendment seeks to deal with that point, but it fails to do so because it does not apply to some commitments. The Wassenaar arrangement is one example. It would be unfortunate if, as a result of the amendment, the UK could not participate in or co-operate with some important international bodies simply because they did not fit into the description in the amendment. The Government also wish to have the power to exchange information within government—for example, with Her Majesty's Customs and Excise—for the regulation and enforcement of export controls and investigation or prosecution of offences.The proposed amendment would restrict the uses for which the Government could share information simply to monitoring and compliance and require any such information-sharing to be in confidence. The result would be to prevent the Government from meeting their international reporting obligations. It would also prevent the Government from being able to assist authorities in overseas governments or authorities in enforcement of their own export controls, except in accordance with formal international agreements. The condition on confidentiality is of course unenforceable in respect of information disclosed to authorities outside the UK. Sharing information appropriately with other authorities is an essential part of supervision, investigation and enforcement generally. It is important to have the power to go to other countries and give them information when we believe that activities are taking place that would not be compatible with their views.
As for the concerns about the Human Rights Act and protecting disclosure on the grounds of commercial interests, those issues have been taken into account. The Bill itself is compatible with the Human Rights Act—an explicit statement to that effect was made by the Secretary of State. That statement, which is a statutory requirement under Section 19 of the Human Rights Act 1998, was included with the Explanatory Notes to the Bill. The Government need to share information with other departments for the purpose of making decisions about licences. There would be no improper disclosures.
In view of those reassurances, I invite the noble Baroness to withdraw the amendment.
9 p.m.
Baroness Miller of Hendon: My Lords, I moved a similar amendment at an earlier stage and took into account what the Minister said on that occasion. I am disappointed that he did not return with an amendment that took note of all of the relevant concerns. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon moved Amendment No. 20:
- Page 5, line 24, at end insert—
The noble Baroness said: My Lords, when I moved an identical amendment in Committee, I said that although I was not happy with the Minister's explanation why the amendment was not acceptable, I would read his remarks carefully. As he knows, I always read his remarks carefully. If anything, I am even more convinced of the need for the amendment.
I remind noble Lords of the reasons for what I described as a self-explanatory amendment. I reminded the Committee of the notorious Matrix Churchill case, where tubes were supplied ostensibly for oil pipelines but it transpired that they were the cunningly disguised barrel of a so-called "super gun".
Clause 6(1)(g) empowers the Secretary of State to create criminal offences that will carry penalties—depending on which part of the intended regulation is breached—of an unlimited fine or an imprisonment of up to 10 years, or both. Past events have shown us that wholly innocent people can be unwittingly caught up and imprisoned and that they and their businesses can be completely ruined and their employees thrown out of work. It is for that reason that it is essential that they should have the defence that they did not know and—I stress this—that they could not reasonably have been expected to know about the use to which the export involved was going to be put.
In opposing the amendment in Committee, the Minister said:
The Bill empowers the Secretary of State to create offences attracting severe punishments. There is no reason why the same Bill should not indicate what defence or defences there may be. Of course, the Government prefer to rule by secondary legislation rather than with full parliamentary scrutiny that primary legislation receives, at least in your Lordships' House, but where the liberty of the citizen is concerned, it should not be left to the whim of Whitehall as to what defences a defendant may have. The Minister in his response prayed in aid the wording of the dummy regulation. He said,
I took the Minister's advice and read the secondary legislation. I can only wonder whether he had done so before he made that statement in Committee. That statement was contained in a brief that had clearly been prepared for him by his department. I quote Article 15, which is entitled "Offences and Penalties". It states:
The dummy order does not live up to what the Minister claimed for it. I firmly believe that if Parliament is going to allow the Secretary of State to create criminal offences, the same legislation that gives those powers should prescribe the limits of those powers and should not leave it to the Secretary of State to decide for himself or herself what limits—indeed, whether there should be any limits at all—there are on how they are to be exercised. I beg to move.
Lord Bach: My Lords, the noble Baroness reminded us that this matter was debated in Committee. On that occasion she graciously agreed to withdraw her amendment but gave a clear indication that she might return to it on Report. She has certainly done so. Clearly, she was not reassured by our response on the previous occasion and, therefore, the amendment is the same as it was last time. The burden of the argument that I shall put forward as to why the amendment is not required is essentially the same as before.
First, I want to provide some background as to how the current regime works so that it will be clear, I hope, why the amendment is not appropriate on the face of the Bill. The first point to make is that the goods and technology that are subject to control are all set out in secondary legislation, in particular under the 1939 Act and in the draft dummy orders which we published in October. Prohibited destinations are also set out in the commitments list which is included in the annual reports on strategic export controls. Such information is also available on our website.
The details of the items which are subject to control and prohibited destinations must be in secondary legislation because they are obviously subject to change. The offences and, of course, the penalties for those offences are also set out in secondary legislation. They, too, may change over time subject to parliamentary scrutiny but, on the whole, they are fairly constant. However, that is not to say that it might not, at some stage, be the Government's wish to increase potential penalties, particularly if certain offences became more common and we needed to deter them or if it was generally felt that penalties should be increased because of greater risks, as, for example, following the atrocity on 11th September last year.
With those offences go legitimate defences, and such matters also belong in secondary legislation. Frankly, it would be a nonsense to separate the offences set out in secondary legislation and the defences set out in primary legislation. The draft dummy orders which we published in October set out the various requirements related to persons either knowing or being informed about intended end uses. In the case of dual-use items, which are controlled by the EC Dual-Use Items Regulation as applied by UK regulations made under the European Communities Act 1972, offences arise only where the person concerned has been informed by government or is aware or suspects that an item is or may be intended for use in connection with weapons of mass destruction.
In the case of suspicion, the prohibition is displaced where the exporter has made all reasonable inquiries as to the proposed use of items and is satisfied that they will not be used in connection with a weapons-of-mass-destruction programme. The language used elsewhere in the dummy orders makes the nature of offences and defences quite clear. That was explained in Committee and examples were given. Including such provisions in secondary legislation does not weaken the defences available to those accused of offences.
A further point which is perhaps worth making is that the Bill will achieve a long-overdue consolidation and rationalisation of powers and procedures for national and EU controls. That will be one of the many benefits which we hope to achieve with the Bill. However, the amendment would have unfortunate consequences in relation to our EU commitments. The words,
One consequence of the amendment could be to undermine our intended rationalisation of controls by making it necessary to continue to rely on the European Communities Act 1972 to implement EU controls. We believe that that would be unfortunate. It would also mean that the amendment would not have any effect on such controls and defences to offences created to enforce them under a 1972 Act order.
The basic point that we wish to make—we make it again—is that these are specific matters which have always been set out in secondary legislation precisely
The second argument is one to which the noble Baroness referred in moving the amendment. It concerns the offences set out in the dummy order. She referred, first, to Article 15(1) and quoted from it as follows:
The chance of people being prosecuted for the absolute offence of contravening a prohibition or a restriction is extremely unlikely. The suggestion that somehow someone's reputation would be damaged for ever by doing that is inconceivable. The answer to the point raised by the noble Baroness is that serious offences in Article 15(2) and 15(3) have in them the word "knowingly". That means that the defendant does not in any sense have to prove his innocence, but that the prosecution, as in all criminal trials, has to prove that the defendant knew about the transfer of the software technology in Article 15(2) and 15(3):
On the summary offence under Article 15(1), that is a contravention, a prohibition or a restriction which is not likely to be prosecuted. If it were, the maximum sentence is a level three fine. It is an absolute offence, as there are other absolute offences in the English criminal law.
That is the second reason why we argue that the noble Baroness is wrong in wanting to amend the clause in this way. The first reason is that it is in secondary legislation and should remain there, and the second is that no injustice is caused to any defendant by the clause as it now stands. Therefore, I ask her to consider what I have said and to withdraw her amendment.
Baroness Miller of Hendon: My Lords, I am definitely disappointed by the Minister's reply. I do not believe that that will surprise him, even though he
I understand that the Minister does not want the defence on the face of the Bill, but it seems to me extraordinary that regulations can create offences and that the offences can incur—never mind what the Minister says, because it is clearly in the Bill—penalties of up to 10 years just like that. That is to be done by regulation. The Minister suggested that the penalties could be even greater and that that is why the matter needs to be covered by regulation.
It is a sad day for the British legal system and for parliamentary democracy when clauses such as this can be dealt with by secondary legislation. It is a poor show. I have listened to what the Minister has said and I can see that I shall get no further with it. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
"( ) It shall be a defence to any charge under subsection (1)(g) of an offence described wholly or partially by reference to the uses to which any goods, technology or technical assistance may be put that the person charged did not know and could not reasonably have been expected to know that there was a risk that the goods, technology or technical assistance in question would be put to such uses."
"This is essentially a defence based on the level of reasonable knowledge about intended end-uses".—[Official Report, 7/2/02; col. 839.]
Exactly, my Lords. I am glad that the Minister agreed with the point that I was making. He went on to say:
"The amendment is not required and is inappropriate . . . It would not be appropriate, therefore, nor indeed possible to provide in the Bill for a defence in respect of offences to be created in secondary legislation".
There is absolutely no justification or precedent for that statement.
"perhaps I can reassure the noble Baroness . . . that appropriate defences would . . . be available in respect of offences to be introduced in secondary legislation".
"A person who contravenes a prohibition or restriction in (a) or (b) shall be guilty of an offence and liable on summary conviction to a penalty",
and so on. That is an absolute offence. There is no trace or hint of a defence of lack of knowledge. The regulation goes on in two further paragraphs to refer to a person "knowingly concerned" with certain actions,
"with intent to evade any prohibition".
At least to that extent the regulation is satisfactory because it does put the onus of proving both knowledge and intent on the prosecution, but it clearly illustrates that two types of offences are being created. Both are in respect of an alleged breach of the identical articles of the dummy order. The first is an absolute offence and the second involves the element of a defence available to a defendant. Nevertheless, a person could be entirely ruined by a conviction, even in a magistrates' court, and there is no justification for depriving him of a defence simply because the prosecution chooses to try him in a lower court rather than on indictment.
"could not reasonably have been expected to know",
are simply not compatible with the end-use control provisions in the EC regulation to which I have just referred.
"A person who contravenes a prohibition or restriction",
in various articles. She is right. That is an absolute offence. Article 15 ensures that there is consistency between the treatment of export control offences under the Customs and Excise Management Act 1979 and the new offences created under powers in the Bill. Like Section 68 of the 1979 Act does in respect of the export of goods, the order prohibits the electronic transfer of control technology. It is a matter of fact. It is possible for a person to commit such an offence without knowledge. The point that I want to make is that it is a much lesser offence and it is subject to a much lower penalty than those offences that appear under Article 15(2) and 15(3). The maximum sentence for such an offence is a level three fine.
"Any person knowingly concerned in the provision, or attempted provision, of technical assistance related to the supply . . . of any goods, with intent to evade".
In other words, anyone charged with the serious offences under Article 15(2) and 15(3) is protected by the natural defences that follow from the need for the prosecution to prove knowledge.
9.15 p.m.
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