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Lord Sainsbury of Turville: My Lords, we must be clear about it. There comes a point at which it is no longer the case that we want the process to be totally free. For example, in cases in which a student is working on a piece of applied research and there is no intention of making it publicly available, we would have to consider licences.
The Bill must cover a situation in which an academic is giving someone information that is not for the public domain. It must deal with the secret passing on of information about the sort of military technology that we need to cover. If the information is secret to start with and is not in the public domain and if the research is applied research that could be used for the sort of things with which the Bill is concerned, we would have a different situation.
Lord Avebury: My Lords, I am sorry to intervene again. Will the Minister consider that an academic carrying out research that will lead to publication—a paper for the journal of the Institution of Mechanical Engineers, for example—will not, for the time during which the research is continuing, want other people to discover what he is up to, in case they pre-empt his results? The research is private and is between him and the research student for the time that it continues, until it gets to publication stage.
Lord Sainsbury of Turville: My Lords, I hate to keep coming back to the point. If the aim is to put the research into the public domain, there will be no problem. If there is a doubt about a particular aspect of the research—when it will go into the public domain, for example—that cannot be covered by Clause 9, I am prepared to consider such a case. However, I am sure that such research will be perfectly all right, provided that the purpose is to put it into the public domain.
As I say, we are perfectly prepared to debate that issue because that is what we see to be the essence of academic freedom. But I repeat that if the aim is not to lead towards a paper, that is exactly the situation in which we have to draw the line. Otherwise, we fall into the mistake—which everyone now accepts to be a
mistake—of having a piece of legislation which puts all kinds of restrictions on companies not to transfer information, but promptly allows academics to do so.I now return to the points I was making on the three amendments.
Lord Campbell-Savours: My Lords, will there be an opportunity to deal with these matters in the Commons?
Lord Sainsbury of Turville: My Lords, Lords amendments have to be considered by the Commons and I imagine that some Members will want to take the matter forward then.
I shall now try to explain why in essence Clause 4 takes the wrong approach and therefore why these amendments do not help. Subsection (1)(c) of Clause 4 would exempt any transfers in the normal course of academic teaching and research control. The noble Baroness, Lady Miller, has made exceptions for weapons of mass destruction and, in amendments under consideration today, for military technology. But the Bill provides the powers to impose controls on the transfer of non-military technology which could have serious consequences. For example, under the schedule, we can impose controls now on the export and transfer of technology capable of use in human rights abuses.
Perhaps I may give your Lordships a concrete example of the type of technology that we currently judge could have such a consequence. We control the export of certain paramilitary equipment and related technology. In particular, the Government announced in 1997 a ban on the export of equipment which we have evidence has been used in torture. That includes items such as electric shock belts and electric shock batons. The ban also applies to the export of the technology needed to develop, make or use these items and we intend similarly to ban its electronic transfer abroad under Clause 2 of the Bill when we have the powers to do so. It is the Government's view that it is quite unacceptable that anyone should be exempt from this ban for any reason whatever.
It can be argued, as the noble Baroness has argued, that it is not likely for the academic community to be engaged in research in this area. But, if I may say so, that is not the point. In the Government's view, it would simply be wrong in principle to have legislation under which such transfers could be carried out legally as of right.
It may well be asked, "Why not simply add the technology I have mentioned to the list of exceptions?". However, every time one makes such an attempt to close a loophole opened up by the clause, one gets closer to Clause 9. Clause 9 was carefully drafted to protect academic freedom on the face of the Bill, without opening up major loopholes in the Bill and then trying to close them up again. We consider it wrong to provide an absolute and immutable exemption in primary legislation for any and all academic research which could have the kind of consequences set out in the schedule. We therefore do
not believe that the defects of Clause 4 can be remedied without essentially redrafting it in the form of Clause 9.Perhaps I may remind the House of one additional point. These amendments today do not restore what was formerly Clause 2(2)(c) and (2)(d) to the Bill which allowed for controls on transfers of technology within the UK where there was reason to expect this would be used abroad. These subsections are essential to the integrity of the Bill. Without them, we will have a glaring loophole. As noble Lords are aware, we intend to introduce a requirement to obtain a licence if someone knows or is informed by the Government that a transfer of technology is or may be used in a weapons of mass destruction programme. Without these subsections, such a requirement could not apply if the communication of this technology took place in Britain.
Turning now to another issue, perhaps I may take this opportunity to reassure the House on a point raised by an earlier version of the amendments tabled by the noble Baroness, Lady Miller, and the noble Lord, Lord Rotherwick, which they have now withdrawn. That would have inserted in Clause 4 a provision stating:
- "No order under this Act shall make it an offence for any individual to leave the United Kingdom or otherwise restrict the liberty of any individual to do so".
The noble Baroness and the noble Lord have proposed to get rid of what is now Clause 4(4) and I am pleased that they have done so because that provision, as it currently stands in the Bill, would, among other things, have effectively disabled Clause 3, a clause which the Conservative Party has previously sought to expand. But I accept that that was not the intention.
The new subsection tabled to replace it would require the Government to issue licences under any directly applicable Community provision in such a way as to meet the requirements in Clause 4(1). I am afraid that such a measure would simply be incompatible with our obligations under the European dual-use regulations. It is true that that regulation provides that licensing of the controls contained within it is the responsibility of member states. But the regulation also makes clear that member states must make those licensing decisions on the basis of certain considerations, including the EU code of conduct on arms exports.
3.45 p.m.
Lord Jones: My Lords, I am grateful to my noble friend for giving way. He mentioned controls and it
might help the House if he could say what was the annual value of Britain's exports of military equipment, technical or otherwise.
Lord Sainsbury of Turville: My Lords, I do not have that figure to hand, but I shall be happy to write to the noble Lord and let him have it. In the discussion of the Bill, we have passed the point of debating whether we should have any controls on our exports. We are now considering the minutiae of that. However, if there are figures I can let the noble Lord have relating to the value of our exports, I shall be happy to provide them.
The new subsection tabled to replace Clause 4(4) would require the Government to issue licences under any directly applicable Community provision in such a way as to meet the requirements in Clause 4(1). I am afraid that such a measure would simply be incompatible with our obligations under the European dual-use regulation. It is true that this regulation provides that licensing of the controls contained within it is the responsibility of member states, but the regulation also makes clear that member states must make those licensing decisions on the basis of certain considerations, including the EU code of conduct on arms exports. Imposing a duty on the Secretary of State to grant certain licences in the interest of academic freedom would constitute a misuse of the licensing powers conferred by the regulations by using the powers for a collateral national purpose.
If I may conclude, it is for the noble Baroness to refine Clause 4 if she wishes. We will not oppose that. But these amendments do not make Clause 4 and a deletion of part of what was Clause 2 of the Bill acceptable. This House has done much to improve the Bill since it began its scrutiny of it in January. It was, before Report, a better Bill than when it left the other place. But in accepting Clause 4 and deleting part of Clause 2, this House has severely damaged the Bill. Therefore, the Government will have to look to the other place to put that right. As I said, we are prepared to continue the debate on Clause 9 and test any further scenarios against it, but we believe that there is no way that the defect of Clause 4 can sensibly be put right.
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