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Lord Sainsbury of Turville: My Lords, I gave a very long initial answer because during the course of our consideration of the Bill we had already looked at the question of whether we could solve this problem by the use of the word "relevant" and had decided that we could not.
I begin by answering the point raised by the noble Lord, Lord Joffe. I have set out in great detail the reasons why we feel that Amendment No. 17B has unforeseen and damaging consequences and why it conflicts with the EU position. It would not be sensible to repeat that detail. It is on the record. The legal advice that we have received is quite clear.
The noble Lord also asked how the Government propose to issue guidance on the term "sustainable development" and speculated about that. There is no need for such speculation. We have already made it clear that the guidance on general principles of sustainable development which we intend to publish is that of criterion 8 of the EU code.
I had hoped that I had reassured the noble Lord, Lord Joffe, about what we still believe this clause provides. There is no need to repeat it. The noble Lord, Lord Razzall, asked for a clear statement for Hansard. For that very reason, I gave a very carefully considered statement of my view of the legal position to reassure people in the future about what the Government believe this clause does.
The noble Lords, Lord Redesdale and Lord Joffe, raised the question of the air control system in Tanzania. There will be no decision where there is not a question that the Secretary of State has to make a judgment on these issues. But that is not the issue that the House needs to confront in considering this amendment.
Under the Government's proposed amendment, the subsection (5) duty to have regard to the guidance, which addresses sustainable development, and the schedule table issues is informed by the reference to the consolidated criteria in subsection (8) of this clause. Lords Amendments Nos. 17 and 17B, however, both set up a separate duty which has the capacity to take precedence over the consolidated criteria and the EU
code and thus conflicts with the Government's existing commitment given to Parliament and to our European partners to consider strategic export licence applications against the consolidated criteria.We have to decide today which of those approaches is the right one. I urge the House to take a balanced view, based on the merits of the proposals before it, and agree not to insist on amendments which have the capacity to take precedence over and conflict with the consolidated criteria, but instead to agree with the Government's Amendment No. 17A, which ensures that the subsection (5) duty to have regard continues to be informed by reference to the consolidated criteria in subsection (8) of the clause.
The noble Lord, Lord Redesdale, and the noble Baroness, Lady Whitaker, raised the question of inter-departmental discussions on criterion 8 review. I was pleased to announce on 4th March this year that the Cabinet Office was leading a discussion on how criterion 8 of the consolidated criteria—the sustainable development criteria—can most effectively be applied in assessing relevant export licence applications. Although I have not been involved in those discussions, I understand that the Government hope to make an announcement of their results as soon as possible.
As I said, I have not been involved in those discussions, but I want to make one point clear. I understand that the discussions involved all government departments with an interest and addressed the need for clearer procedures for reaching decisions where sustainable development is an issue rather than changing policy with regard to criterion 8 of the consolidated EU and national arms export licensing criteria. I want to make that clear so that there is no misunderstanding on that point.
The noble Lord, Lord Judd, raised the issue of the incorporation statement. The most important point about that statement is that it very clearly demonstrates a point which we have made on a number of occasions during this debate; that is, that issues can arise where the consolidated criteria do not provide specific guidance on the approach to be adopted. It is right and proper that the Government issue guidance in such cases, and that will remain true in the future.
One might ask why the issue of the incorporation of parts into larger armaments has not been raised previously. The fact is that it has not been raised by any political party inside or outside Parliament. Clearly with a new situation such as that, it is necessary to produce new guidance to cover the point.
Lord Judd: My Lords, will my noble friend give way? I am very grateful to him for dealing with this point, but there is another matter with which he has not dealt. What is worrying is that it is clear that the Secretary of State may suddenly move the goalposts without telling anyone that he is proposing to do so and without providing an opportunity for consultation.
Lord Sainsbury of Turville: My Lords, this was clearly a case where a decision had to be arrived at in
the light of a totally new situation. In those circumstances, it is right and proper that the Government give clear guidance on the basis of which they will take decisions.
Lord Campbell-Savours: My Lords, on that matter, would this not have been a classic case for putting before the defence exports scrutiny committee that we have struggled so hard to bring about under this legislation and which to date the Government have refused to set up?
Lord Sainsbury of Turville: My Lords, that question, which concerns a proposal that we have debated in this House and which has many difficulties attached to it, is probably the type of question on which such a committee could have been asked to give its view. Nevertheless, those decisions had to be taken and some guidance had to be given at that moment.
I turn to the questions raised by the noble Lord, Lord Brennan. I believe that his first question concerned the issue of absolute action. As I explained earlier, Amendment No. 17A needs to be seen in context. It does not stand in isolation and should be seen in the context of the rest of the clause, which refers to the consolidated criteria, and, indeed, in the context of the proceedings of the passage of the Bill, as reported in Hansard. Under the Bill, it would not be possible—I have made this point previously—to choose to ignore issues such as human rights and the other issues listed in the schedule.
The noble Lord asked what was the basis of the guidance. It is clearly the EU criteria. In fact, we shall not consult on the EU criteria because they are the criteria and there is no point in consulting on them. The noble Lord also asked about individual decisions. We do not ever comment on individual decisions in a case such as this.
I hope that I have set out the Government's position and explained why we cannot accept Amendment No. 17B—that is, because it produces damaging and unforeseen consequences. I hope also that I have dealt clearly with the question of reassurance for the record in Hansard, and that noble Lords will be reassured by that.
I ask the House not to insist on their Amendment No. 1 to which the Commons have disagreed for their reason numbered 1A.
On Question, Motion agreed to.
3Clause 2, page 1, line 19, at beginning insert "Subject to the provisions of section (Academic Freedom),"
The Commons disagreed to this amendment for the following reason—
Lord Sainsbury of Turville: My Lords, I beg to move that the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A. In moving this Motion, I shall speak
In the course of debate in this House and elsewhere on the impact of the Bill on academic freedom, it has become clear that government, opposition parties and the representative bodies of the universities essentially share the same objectives. Those are to find a way of providing protections that would prevent a government in future using the powers in the Bill to damage academic freedoms while, at the same time, ensuring that the Bill provides the Government with the powers that they need for an effective and up-to-date export control regime.
The debate has been about how best to achieve a proper balance between those two objectives. As the noble Earl, Lord Russell, expressed it in debate on Report,
Against that background, I am pleased to say that Amendments Nos. 10B and 10C proposed in lieu of Amendment No. 10 have been prepared in discussion with the noble Baronesses, Lady Miller and Lady Warwick, and the noble Lord, Lord Roper. I am grateful for the constructive approach that all have taken in trying to achieve our shared goal. In particular, I acknowledge the pivotal role of the noble Baroness, Lady Miller, in obtaining agreement on our text with which both Opposition parties, Universities UK and the Government are content.
The House will recall that on Report both the Government and the noble Baroness, Lady Miller, proposed new clauses that sought to provide reassurance that the Bill could not be used by a future government in a way that damaged important academic freedoms. The House accepted both clauses. The new clause that I have tabled will take the place of both those clauses. Technically, it replaces the Government's clause but it is offered in lieu of the clause introduced by the amendment of the noble Baroness, Lady Miller, as well.
Following the extensive debates that we had in this House both on Report and at Third Reading, we reflected further on the issues raised and concluded that there were two legitimate concerns about the Government's clause which we should seek to address. The first was that, in obliging the Secretary of State simply to have regard to the need to avoid certain unreasonable restrictions, the clause did not place a particularly strong obligation upon the Secretary of State.
The second was that concerns remained about whether the clause would apply to the communication of research or communications in the course of
First, it introduces in subsection 1(a) a reference to a new activity to be protected by the clause, namely,
The second way in which this clause goes further than that agreed on Report is that it places a stronger duty on the Secretary of State in terms of the requirements upon him or her to ensure that these freedoms are protected when drawing up control orders. And it therefore also increases the ability of the court to strike down unacceptable provisions in a control order. The noble Baroness, Lady Miller, expressed the view on Report that the clause we had introduced on Report—Clause 9—created,
The clause would state that it is for the Secretary of State to determine that any interference in any of the freedoms described in the clause is necessary in the light of the circumstances prevailing at the time and having considered the reasons for seeking to control the activity in question and the need to respect the freedom to carry on the affected activity. This formulation makes explicit that the Secretary of State must form his or her view of the need for the interference in the light of all the relevant facts and other surrounding circumstances. These will include international obligations and commitments undertaken by the United Kingdom. It also makes explicit the balancing exercise that must be carried out by reference to those circumstances and to the needs both to control the activity and to respect the freedom to carry on that activity. This means that the Secretary of State will have to identify the ways in which particular proposed controls are likely to impinge on the freedom to communicate in the ways that are specified in subsection (1), and the reasons for that interference. He or she will then have to decide whether that control is "necessary".
These procedures will require the Secretary of State to consider the proportionality of the proposed controls, in order to be able to conclude that the degree of interference is no more than is necessary to meet the identified reasons.
This means that the Secretary of State could be challenged in the courts on one or more of the following bases: whether he or she had taken account of all the relevant facts and other circumstances and not considered irrelevant material; whether he or she had taken the proper steps to identify all the apparent interferences and the reasons for them; whether he or she had considered whether the degree of interference was justified by the reason for imposing the interference in the first place; and whether he or she had considered and balanced these reasons and the degree of control against the need to respect the freedom to carry out the identified activity.
The clause would enable the court to assess whether, in respect of any particular control, the Secretary of State had acted within the terms of the power and had reached a conclusion that was within the range of conclusions that it would be open to a person in those circumstances to reach while acting not unreasonably. The courts would thus be able to restrain arbitrary or unreasonable use of the power, or use of the power for collateral purposes.
I am confident, therefore, that this new clause provides real protection against the possibility of the powers in the Bill being abused in the future. At the same time it does so without creating loopholes that could be exploited by the unscrupulous. I am grateful for the assistance of the noble Baroness, Lady Miller, the noble Lord, Lord Roper, and the noble Baroness, Lady Warwick, in drawing up this clause. I shall, therefore, be inviting the House to support Amendments Nos. 10B and 10C. I understand, too, that, in light of the agreement we have reached, the noble Baroness does not consider it necessary to insist on the other amendments to the Bill introduced on Report by her amendments and for that reason I shall be inviting the House not to insist on its Amendments Nos. 3, 4, 6 and 10 to which the Commons have disagreed, and shall move that the House agree with the Commons in their Amendment No. 13A to Lords Amendment No 13.
Moved, That the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.—(Lord Sainsbury of Turville.)
Baroness Miller of Hendon: My Lords, I thank the Minister for three things. First, I thank him for having introduced this amendment in lieu of the Commons rejection of this House's Amendment No. 10 and for the explanation he has given us. Secondly, but even more importantly, I thank him for the fact that at last, after debate in your Lordships' House and difficult negotiations between the noble Lord and myself behind the scenes, he has persuaded the Government to recognise the genuine concerns of the academic
Lastly, I am grateful to the Minister for having implemented his promise to provide me with an advance copy of the statement he has made about the legal implications of the new clause.
On Report, I introduced an amendment designed to protect and preserve academic freedom. At that time it was strongly opposed by the Government but was passed by a substantial majority: 150 votes to 108. That was because of the unswerving support of the Liberal Democrat Peers, led by the noble Baroness, Lady Sharp of Guildford, for which I am extremely grateful, and the work of many Cross-Bench Peers.
Despite that overwhelming indication of cross-party support, the Government's huge majority in another place was used to steamroller the carefully drafted amendment out of existence. Today we are discussing an amendment in lieu of the Commons amendment. I am sure the Minister will agree with me that the amendment did not have an easy birth. The first draft presented by the Government contained a provision that academic freedom would not be interfered with unless,
The final draft of the amendment now makes clear that the criterion for any regulation is an objective judgment. It has been approved by me, therefore, on behalf of the Conservative Opposition. The noble Baroness, Lady Sharp of Guildford, may state, I believe with some pleasure, that noble Lords on those Benches accept the amendment.
The noble Lord, Lord May—he is at present on holiday—has been supportive of the arguments I have put forward to secure the amendment which is before the House today. In its present form, the amendment is accepted by Universities UK, the noble Baroness, Lady Warwick of Undercliffe, and the Association of University Teachers. The noble Baroness has worked hard on the issue behind the scenes.
As I agreed from the outset with the Minister, my acceptance of a compromise was conditional on his making it clear on the record that the objective
Finally, apart from the support that I have received from noble Lords which I have already acknowledged, I should like to place on record my appreciation of the exceptional advice, assistance, encouragement and support that I have received from the noble Lord, Lord May, the distinguished President of the Royal Society, the noble Baroness, Lady Warwick of Undercliffe, Universities UK which represents university vice-chancellors, the Association of University Teachers, the Foundation for Information Policy Research, Dr Ross Anderson of Cambridge University, who is a specialist in electronic encryption, a solicitor, Mr Nicholas Bohm, a member of the Electronic Law Committee of the Law Society—those two gentlemen are involved with the Foundation for Information Policy Research—and another solicitor who insists on anonymity.
As I have just said, I am glad that in the end the Government and their advisers saw reason and accepted that the protection of academic freedom is essential if the United Kingdom is to remain a leading world-class centre for academic teaching and research. On that basis, we are pleased to support the Government's Motion for this amendment in lieu.
3ABecause Lords Amendment No. 16 makes more appropriate provision.
"the most interesting and difficult parliamentary conflicts are those which are between right and right".—[Official Report, 18/4/02; col. 1118.]
The Government and others have been concerned that amendments introduced by the Opposition created, if unintentionally, damaging loopholes in the Bill. But others have been concerned that the new clause introduced by the Government on Report did not go far enough in protecting academic freedoms.
"the communication of information in the ordinary course of scientific research".
This is in addition to the activities of publishing information or communicating published information. I believe that that addresses the concerns raised by the noble Baroness, Lady Sharp, at Third Reading about communications between academics and their research students and by the noble Lord, Lord Avebury, about the fact that an academic carrying out research that will lead to publication will not, while the research continues, want others to discover what he is doing and will, therefore, keep that research private.
"only the lowest kind of whisper of a restriction".—[Official Report, 20/5/02; col. 532.]
The Government would certainly argue that it did more than that, but we did accept that there was scope to strengthen the requirements placed by the clause on the Secretary of State. I believe that it would be helpful for the House, and for future reference, if I explain in some detail, what the legal effect of the revised clause would be.
4.15 p.m.
"The Secretary of State . . . is satisfied that it is necessary to do so".
Obviously that was unacceptable. At 9.30 last Wednesday evening the Minister personally handed me the draft of a revised amendment which off the cuff I believed would have been acceptable. However, by late the next morning I heard that there was a new draft. I do not intend to trouble noble Lords with a blow by blow account of what then ensued but during the next six hours in the course of hectic negotiations, a flurry of telephone calls, faxes and e-mails no fewer than four more drafts were submitted by the department. They were rejected by me because they contained one essential flaw. They left the degree of regulation to the subjective judgment, the mere opinion, of the Secretary of State rather than the objective judgment that the Minister and I agreed would be the criterion. What the Secretary of State thinks is not objective. If the Secretary of State thinks that the earth is flat, it would not make the earth flat.
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