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Lord Judd: My Lords, during earlier stages of the Bill, I was one of those who raised concern that amendments proposed by the noble Baroness, Lady Miller of Hendon, would not fully meet the security requirements that the Bill is all about. I should again emphasise my continuing involvement, albeit in an unremunerated capacity, in Saferworld and Oxfam, both of which are closely interested in the Bill.
I thank the noble Baroness for tabling her amendments today, because they address one concern—the provision would no longer simply concern weapons of mass destruction. But with some trepidation, I suggest to her that it still does not cover dual use or non-military security goods. That is a real cause for anxiety. Furthermore, if we are serious about the Bill's purpose—and we must be—while it is vital to protect academic freedom, that cannot be at the expense of ensuring that proper controls are in force. I am still concerned that the amendments passed on Report leave some potentially dangerous loopholes, especially with regard to controls on intangible transfers.
As I understand it, under the Bill as amended, people could visit the United Kingdom and gather information that could then be used in other countries. Controlling that activity is not new. For many years, physical forms of such transfer have been controlled—for example, paper letters and computer disks containing blueprints. The extension of those controls to cover intangible means reflects the need to address new methods of communication. Who could have envisaged the introduction of e-mail in 1939 when the most recent export control legislation was passed? Surely, it is logical that the controls already in place should be extended to cover today's methods of communication. I shall be interested to hear what my noble friend has to say on that point.
Lord Sainsbury of Turville: My Lords, I should first say that, despite her denial of the fact, the noble Baroness, Lady Miller, and I have been meeting. Indeed, it is a sign of the closeness of our relationship that we were corresponding at eight o'clock on Saturday evening to try to resolve the issue.
I did not want to meet her originally because we were doing important work with Universities UK. It had proposed various scenarios with which it believed that academics were concerned. We wanted to test those scenarios against Clause 9 to see whether it was robust in defending academic freedom. It was, but I shall come to that in a moment.
The clause to which the amendments relate, Clause 4, has introduced some highly damaging loopholes to the Bill, as I explained on Report. As the noble Baroness said, she seeks through the amendments to deal with some of the concerns that I mentioned on Report. While grateful to her for that,
I regret that the amendments do not solve the problems with Clause 4. Indeed, they could not do so, because Clause 4 simply takes the wrong approach.It is worth going back to first principles. The Bill is about regulating exports, trade, intangible transfers and technical assistance that could have extremely serious consequences—consequences that must be the concern of any government with a responsible foreign and defence policy. The Bill can be used to impose controls only within the limits set by Clause 6 and the schedule. That means that it can be used to impose controls only on military equipment or technology, or equipment or technology whose export or transfer risks adverse consequences, such as damage to our national security or its use for human rights abuses, in terrorism or in serious crime.
We must ensure that, in regulating to try to avoid those serious consequences, the Government do not damage fundamental freedoms. As I have said, the Human Rights Act 1998, which the Government enacted, has the precise function of protecting fundamental freedoms, such as the right to freedom of expression. We have, nevertheless, gone further and included what is now Clause 9 to meet the valid request of the academic community for protection of academic freedom in the Bill.
Clause 9 does not use the words "academic freedom", but it goes to the heart of what academic freedom is about, by protecting freedoms for all—not just members of the academic community—to publish or otherwise make publicly available their research. Clause 9 means that the Secretary of State could not impose unreasonable controls on the process of making information generally available to the public or on the communication of information already available to the public, without seriously risking legal challenge. No government will want to risk seeing a court strike down aspects of their export control regime.
As I said, Universities UK sent us a list of scenarios that illustrated the kind of situation about which universities were concerned. We tested them against the dummy orders and the Bill, and I have placed the department's answers in the Library. I hope that everyone will see from those that the Bill protects academic freedom.
3.30 p.m.
Baroness Sharp of Guildford: My Lords, I have read the letter that the Minister sent to the noble Baroness, Lady Warwick of Undercliffe. One thing that worries me greatly about the department's answers is that, although they covered the case of, for example, a Pakistani student coming over and taking an MSc course in computer technology, they did not cover the case of a postgraduate student coming to work as a PhD student with a professor and participating simultaneously in the development of his research.
As the Minister knows, that happens frequently. In effect, PhD students act as research assistants to academics in developing their own work. That work is not in the public domain. Academics will not want to
put their ideas in the public domain before they have formulated them. There is concern in the academic community that the Bill would restrict relationships with postgraduate students in such an environment.
Lord Sainsbury of Turville: My Lords, there is a question about how "public domain" is defined. I am convinced that there will be no problem for that kind of relationship. It would not be considered to be a communication of the sort for which there would have to be a licence. It would be regarded as being in the context of basic research, as that is defined in the regulations.
Baroness Miller of Hendon: My Lords, I do not like to interrupt the Minister but, having heard his answer to the noble Baroness, Lady Sharp of Guildford, I would like him to define what is in the public domain.
Lord Sainsbury of Turville: My Lords, the question is what is defined in the clause. As long as the communication is not of secret information to another country, it will be considered to be within the public domain or generally available to the public.
Baroness Sharp of Guildford: My Lords, if the work is of an applied nature, it would not, under the terms of the European directive, be defined as basic research.
Lord Sainsbury of Turville: My Lords, the point that I was making was that it would be within what is defined, in this case, as being publicly available. It will not be a secret communication and will not, therefore, be covered. That is why I think that the concerns of the academic community about that are unwarranted.
Baroness Blatch: My Lords, the question is pertinent to our debate. First, the research described by the noble Baroness, Lady Sharp of Guildford, is not, by anybody's reckoning, in the public domain. We must ask the Minister for the Government's definition of the public domain. The Minister said that it depended on what was and what was not in the public domain. The research referred to would not be in the public domain.
Lord Sainsbury of Turville: My Lords, the new orders relating to intangible assets that we propose to introduce will include an exemption for basic scientific research. The point is that there would be no difference for a PhD student working in the circumstances described by the noble Baroness, Lady Sharp of Guildford, or a student being taught as in the examples that we gave. Both should be covered because the work should be publicly available. That is our legal advice.
I am prepared to go on testing the point and to consider any other scenarios that the noble Baroness or anyone else wants to raise. We will test them against Clause 9, and, if there is any doubt, we will examine the situation. However, it must be tested against what is set down. For all the scenarios that we gave, which are similar to those described by the noble Baroness, there is no problem.
Lord Avebury: My Lords, the Minister has tried hard to explain what he means, but I am as mystified now as I was at the start of the debate.
The Minister has not dealt with the example that was given by my noble friend Lady Sharp of Guildford. The professor may be engaged in applied, not basic, research and may be looking for a product, process or method of operation—the definition of applied research. He may enlist the help of a PhD student with his research. The research is not in the public domain. The professor will have no intention that it should reach the public domain until he has reached a conclusion and published the results. While the research continues, it is private, as are communications between the professor and the PhD student. Will the Minister say whether that is one of the scenarios that has been considered? If not, will it be fed in?
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