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Lord Sainsbury of Turville moved Amendment No. 22:
- After Clause 6, insert the following new clause—
The noble Lord said: My Lords, Amendment No. 22 goes rather further in some respects than a similar amendment we agreed earlier. I commend it to the House. I begin by reiterating what I made clear when the issue of academic freedom was discussed in Committee. The Bill will not lead to control of information in, or being placed in, the public domain, and the Bill, all secondary legislation and all actions or decisions taken under it, must comply with the Human Rights Act which protects freedom of expression. Indeed, my noble friend Lady Warwick, who is the chief executive of Universities UK, stated in Committee that discussions between the Government and Universities UK had convinced it that the Government in no way wanted to impinge upon academic freedom by way of the Bill. None the less, Universities UK and many noble Lords have argued for this to be made explicit on the face of the Bill rather than being left to secondary legislation, and indeed have repeated those arguments today.
The Government have listened to these concerns and wish to make their position on this important issue clear. The Government's proposed amendment therefore provides on the face of the Bill for protection of the principle of freedom to publish and to communicate information that has already been published. The amendment rightly applies to all persons, not just to the academic community. It concerns a general principle which is not of unique concern to the academic community. We believe that it achieves essentially what the Opposition were seeking to achieve by their amendment but avoids the damaging loopholes created by that amendment.
The amendment requires 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. The Government will need to bear this provision in mind when entering into any international commitments to ensure that these do not require the imposition of unreasonable restrictions on the freedom to publish or to communicate information in the public domain. Any order under the Bill which did attempt to place an unreasonable restriction on publication or communication, and any action affecting an individual based on such a restriction, 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 where that is necessary to control activities which might cause real harm, such as contributing directly to the development or production of weapons of mass destruction. For example, as I explained in Committee on this issue, the European Community's dual-use items regulation imposes controls on the transfer of technology, whether or not in the public domain, which is intended for use in connection with a particular weapons of mass destruction programme. The Bill must allow us to continue to be able to impose such controls where necessary.
The proposed amendment adds to the protection of freedom of expression already enshrined in the Human Rights Act. Under that Act an individual can challenge any order made under the Bill which impacts on his convention rights. The amendment would strengthen this further by providing that the order itself could be challenged if it attempted to place an unreasonable restriction on publication or communication, irrespective of its impact on an individual. For the order to stand, the Secretary of State would need to be able to demonstrate to the court that the restriction in the order was justified by the circumstances.
I add that the amendment applies not only to orders on transfer of technology or technical assistance, but to all control orders introduced under the Bill. Moreover, unlike Amendment No. 10, the amendment applies to all controls under the Bill, including those required by international regimes. At the same time, it allows any reasonable or justifiable restrictions imposed by European legislation or joint actions or international obligations including voluntary agreements, such as the Wassenaar arrangement, to be implemented in the UK.
The amendment strikes the correct balance between the need to protect academic freedom and the need for effective export control and I urge noble Lords to accept it. I beg to move.
Baroness Miller of Hendon: My Lords, we certainly accept the amendment, because anything that helps to stop total government control of academic freedom must be good. I shall say only that it is a weak amendment—I do not wish to be impolite to the noble Lord; I think that he thinks that I have done that quite enough this evening, but I have not meant to. It is difficult to know what,
On Question, amendment agreed to.
Baroness Miller of Hendon moved Amendment No. 23:
The noble Baroness said: My Lords, this is a modest amendment that contains three simple provisions. First, it specifically allows the Secretary of State to grant temporary export licences—as, indeed, she already does—to facilitate the showing of samples, giving of demonstrations of equipment to potential customers and sending of goods to exhibitions. It
Secondly, it defines the purposes, which I have just described, for which a temporary export licence may be granted. Thirdly, it imposes a time limit for the granting of such a temporary licence, after which it will be deemed to be granted unless refused.
Despite the Minister's argument in Committee that a time limit might result in applications being arbitrarily refused, I should think that, on the contrary, it would concentrate his department's mind to get on to deal with applications in recognition that they are inevitably time-sensitive. If a supplier cannot show his goods quickly to a potential customer, a valuable export order may be lost. In more complex cases, an applicant could grant a time extension for further consideration by the department.
I fully understand that such an amendment is unwelcome to the Whitehall machine, but the question is whether it works for our export industry, or whether our manufacturers work for it. As long as the department fails to meet its target of dealing with applications within 20 working days, as it continually does in a substantial proportion of cases, applications for temporary licences need to be specifically authorised and defined, as they are in the amendment, and a time limit set for them to be dealt with because of the commercial urgency that they involve. I beg to move.
Lord Sainsbury of Turville: My Lords, the amendment would add a new clause to the Bill to require orders under Clause 1 specifically to provide for authorisation under a temporary export licence to cover short-term temporary exports for exhibition or demonstration overseas. Such temporary export licences would be deemed to have been granted unless refused within 20 days of application, unless extended by agreement with the applicant.
First, I should make clear that the definition of export in Clause 1 includes any removal of goods from the United Kingdom, even temporary removal. The draft dummy orders allow a temporary export licence to be issued and we do issue such licences, so it is unnecessary to provide for them in the Bill.
The noble Baroness, Lady Miller of Hendon, explained that she believed that temporary licences should be granted automatically within 20 workings days of application, in order not to hamper British industry. The Export Control Organisation is conscious of the needs of industry and places a high importance on the speedy and efficient processing of export licence applications. Its progress against its target of processing 70 per cent of applications within 20 working days has improved year on year. The amendment would not improve that situation; its effect could well be counter-productive.
In the specific case of temporary exports, there is an open general licence in force for the temporary export of military goods to exhibitions. That permits exporters to exhibit all but the most sensitive military
Destinations not covered by the open licence are, by definition, those where exports, even on a temporary basis, may give rise to concerns under our consolidated EU and national export licensing criteria. The need to process such applications promptly cannot outweigh the need for thorough assessment of export licence applications. Indeed, the small minority of licence applications for which consideration took more than 20 working days were, in general, applications that raised particularly difficult issues. With the amendment, we would be forced to refuse any licence still unprocessed after 20 days, if we were to avoid the risk of contravening our obligations under the consolidated criteria or other commitments by issuing licences by default. The amendment could therefore result in exporters being refused licences that might otherwise have been granted.
The Government appreciate fully the effect that delays in the processing of an export licence application can have on the competitiveness of individual companies and British industry generally. We are working hard to reduce such delays by building up more productive customer relationships, improving our IT systems and working to establish even closer and more effective partnerships with other departments involved in the licensing process. Therefore, I invite the noble Baroness to withdraw her amendment.
"6A RESTRICTIONS ON PUBLISHING INFORMATION OR COMMUNICATING PUBLISHED INFORMATION
In exercising any power to make a control order, the Secretary of State shall have regard to the need to avoid any unreasonable restriction on—
(a) the making of information generally available to the public; or
(b) the communication of information that has already been made generally available to the public."
"to have regard to the need",
means; but it does not mean much. However, the new clause will prevent the severe limit of academic freedom in the Bill, which can only be helpful.
After Clause 6, insert the following new clause—
"TEMPORARY EXPORT LICENCES
(1) Any order made under section 1 shall include provision for the activity to be authorised by a temporary export licence.
(2) A temporary export licence is one which authorises goods to leave the United Kingdom on a short term temporary basis for the purposes of exhibition or demonstration during which time the goods remain under the control of the United Kingdom exporter.
(3) Any application for such a temporary export licence shall be granted within 20 working days from the lodging of the application (or such extended time as the applicant may agree) and if it shall not be so granted, unless it is refused it shall be deemed to have been granted and the provisions of section 6(4) shall apply."
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