§ Lords amendment: No. 10.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to discuss Lords amendments Nos. 3, 4 and 6, and the Government motions to disagree thereto, and Lords amendment No. 16.
§ Nigel Griffiths
Hon. Members may be aware that extensive discussion took place in the House of Lords on the Bill's possible impact on the activities of scientists and academics. To address those concerns and make clear their position on these important issues, the Government tabled their own amendment—Lords amendment No. 16—which protects academic freedom. Opposition amendments Nos. 3, 4, 6 and 10 were passed with the same aim, but they would introduce several highly damaging loopholes. For instance, if they were accepted we could not prevent the transfer abroad of research into the development of torture equipment technology.
I shall explain how the Bill and amendment No. 16 provide protections to ensure that the Bill cannot be misused to damage academic freedoms. I shall also explain the damaging consequences of the Opposition amendments, in the hope that hon. Members will agree to their being overturned.
The academic community has acknowledged its concern not about the controls that the Government plan to introduce through the Bill, but about whether a future Government could misuse the powers in the Bill. Baroness Warwick, chief executive of Universities UK, stated during a debate in the other place that, after discussions with the Government, UUK was convinced that they in no way wanted to impinge on academic freedom by way of the Bill. Universities UK was nevertheless keen for the protections for academic freedom in secondary legislation under the Bill to be backed up by a statement in the House that the Government intended to protect academic freedom in that way. Lord Sainsbury made such a statement in the other place, and I can happily give the same assurance here today.
663 There are already strict limits on how the Bill's powers could be used. They can be used only to control exports or transfers required by our international obligations on military equipment and technology and on exports or transfers that could have serious consequences, such as contributing to weapons of mass destruction programmes, or human rights abuses. In spite of that, Universities UK and others, including parliamentary colleagues, requested that a clear commitment to academic freedom be set out in the Bill. In response, the Government introduced Lords amendment No. 16. That makes clear that the Secretary of State, when making secondary legislation under the Bill, must avoid unreasonable restrictions on putting information in the public domain or communicating material already in the public domain.
Although the amendment does not use the words "academic freedom", it goes to the heart of what academic freedom is about. It protects freedoms for all, not just for members of the academic community, including freedoms to publish, or otherwise make publicly available, research and to communicate it to students and others. That reflects the fact that scientific and other research is carried out far more widely than just in the academic world. Therefore the rules applying to such research should apply equally to all undertaking it—a matter of some concern, I understand, to the hon. Member for Salisbury (Mr. Key).
Under the amendment, any order under the Bill that attempted to place an unreasonable restriction on publication or communication could be opposed in the courts. We have tested the effect of the amendment on a list of scenarios sent to us by Universities UK which illustrated the kind of situation that universities were concerned about. The answers to those scenarios illustrate—I hope—that the Bill will not, and could not, be used to damage academic freedoms. The details are available in the Library. The Government are nevertheless willing to continue working with Universities UK and others to consider any remaining concerns or proposals they may have in relation to the Bill.
The Government amendment, Lords amendment No. 16, also ensures that any controls introduced under the Bill can be kept in line with our obligations under international regimes, such as the missile technology control regime and the Wassenaar arrangement. That is because it will enable us to keep the exemptions for information in the public domain contained in secondary legislation in line with the international concepts and definitions used.
The Opposition's amendment, Lords amendment No. 10, sought to protect academic freedoms, but unlike the Government amendment, it would also create very damaging loopholes in the Bill. I shall explain what those are. First, subsections 1(a) and (b) of the amendment would establish in secondary legislation an immutable exemption for information in, or being placed in, the public domain, unless the transfer was related to weapons of mass destruction or required by international treaty obligations. Because that exemption could not be adapted except by primary legislation, Lords amendment No. 10 would prevent the UK from complying with its commitments to voluntary export control regimes such as the Wassenaar arrangement and the missile technology control regime, if those agreed any change to the definition used, as they might do. As the House will know, those international regimes form a crucial part of global efforts to combat proliferation of conventional and 664 non-conventional weapons, and it is therefore essential that the United Kingdom be able to meet its commitments to those regimes.
Subsection 1(c) of Lords amendment No. 10 would exempt from control any and all information transferred in the course of academic teaching or research unless the transfer was related to weapons of mass destruction or involved military technology. That would exempt anyone engaged in academic research and teaching from controls on the transfer of technology capable of causing the consequences listed in the schedule to the Bill, such as human rights abuses, internal repression or facilitation of terrorism or serious crime. It would therefore permit an academic to contravene the Government's 1997 ban on export of equipment and related technology about which we have had evidence that it has been used in torture—by sending overseas research results on how to make, for example, electric shock batons. It is unacceptable in the Government's view that any one group should be automatically exempted from our export control regime in that way. The all-party Quadripartite Select Committee agreed with that view in its report on the draft Bill, stating:We see no case for complete exemption of academic activity from export controls".The effect of subsection 4 of amendment No. 10 would be to require the Secretary of State to misuse licensing powers granted to her under EU law. Subsection (4) of the amendment would require the Government to grant licences under directly applicable EU provisions in such a way as to exempt academic activity in certain areas from control. However, the European Union dual-use regulation currently in force states that licence applications under it must be considered against the European Union code of conduct on arms exports. The amendment would therefore make the Secretary of State subject to conflicting duties under national and EU law. Moreover, the regulation already includes specific exemptions from control for information in the public domain and for basic scientific research, and it is not open to member states to attempt to alter those.
Lords amendment No. 4, also tabled by the Opposition, would remove clause 2(2)(c) and 2(2)(d) from the Bill. The Opposition suggested in the other place that those clauses could be used to require overseas students to obtain licences to study in the UK. Let me assure the House that that is simply not the case. The Bill could not be used to license overseas students' presence in the UK. However, the powers that amendment No. 4 would remove are crucial if we are to have a comprehensive export control regime. Those powers would give the Government the power to impose controls on transfers of technology within or into the UK where the technology transferred was intended for use outside the UK.
Without those powers, we would have a huge loophole in the Bill. Let me explain why. As well as being exported physically or electronically, technology can in effect be exported through communications in person, either in the UK or overseas—for example, an expert going overseas and providing training there could be effectively exporting technology. The European Union joint action on provision of technical assistance to weapons of mass destruction programmes requires us to control such transfers of technology by UK persons overseas that are destined for use in WMD programmes. But exactly the same transfer of WMD-related technology to exactly the same person 665 with links to a WMD programme could be made entirely within the UK, with the intention that the recipient would then use that technology overseas.
It would be absurd if a licence was needed for the overseas transfer, but not if the same transfer took place in the UK. Equally it would make a nonsense of the controls if they could be evaded by a UK person overseas transferring technology into the UK in the knowledge that the receiver intended to take that information and use it overseas. That is why we have proposed to introduce controls on such transfers within and into the UK. However, we recognise that regulating these types of transfers is difficult, so we have made it clear that these controls will apply only to the areas of greatest concern—namely, weapons of mass destruction and related missile programmes.
We need clause 2(2)(c) and 2(2)(d) of the Bill if we are to have effective controls against the proliferation of weapons of mass destruction. Indeed, our proposals in this area were strongly supported by the all-party Quadripartite Committee, which pointed out thatnon-proliferation is arguably the most important single issue in strategic export controls".The Committee went on to describe the proposals in its report on the draft Bill as "profoundly significant".
The Government have made every effort to address the academic community's concerns about the Bill. We believe that Lords amendment No. 16 strikes the correct balance between the need to protect the freedom of academics and others engaged in teaching and research and the need for an effective export control regime. I urge the House to accept the amendment and to overturn Lords amendments Nos. 3, 4, 6 and 10.
§ Mr. Key
This is an important group of amendments and we have only a little over half an hour in which to have a coherent debate. I shall do my best to be speedy. The Minister is profoundly mistaken to think that the academic community will be in any sense reassured by what he has said and what his colleagues said in the other place. There is a misunderstanding about why the academic community is concerned. The current regime of export controls was introduced in 1939, and for many years it applied only to physical goods. Although technology could be transferred electronically by telegraph from the 1840s, by telephone and fax from the 1870s, and by radio from the 1900s, no attempt was made to do so.
Some years ago the Department of Trade and Industry started applying export controls to manuals for weapons as well as to weapons. That caused a certain amount of grumbling, and served no obvious purpose other than to make work for the civil service. The DTI, however, has never lacked powers against genuine arms exporters. If a company successfully argued in court that controlling manuals was ultra vires, it would no doubt get hammered on its other licence applications. The problem is that these powers have often been used erratically. For example, the Canadian army was refused an export licence for flails for use in mine clearance in Bosnia. Apparently, the DTI saw the word "mine" and froze. That led to the Scott inquiry, after which something had to be done.
666 During the 1990s, the United States National Security Agency tried to tighten the regulation of civilian cryptography. In the last months of the first Bush Administration, it pitched the clipper chip—a new standard for encryption with the feature that the National Security Agency would hold a master key. Thus US business could get the benefits of strong encryption, but if it were abused by criminals, the National Security Agency would be able to defeat it. George Bush senior and his Cabinet were hostile; they thought that it was bureaucratic empire-building and would cause them all sorts of trouble. Once President Clinton was elected, however, the pitch was repeated and got a warmer reception. Vice-President Al Gore took on the role of directing cryptography policy in the Cabinet. His efforts to sell the clipper chip were hampered by the availability world wide of encryption software that can be downloaded from many academic and other websites. Why should people pay $100 for encryption that the United States Government can break when they can get free software that they cannot break?
Cryptography is now used in a large number of systems as the glue that holds things together. It is found in every personal computer, in web servers, browsers, banks' automatic teller machines, car door openers, electricity meters and even one-armed bandits. As the USA tried to retain export controls on the technology, it waded deeper into trouble.
United States law, unlike English law, allows export controls to be applied to intangibles such as software downloaded from websites. There were furious battles in the United States about whether encryption software was the constitutionally protected academic speech of the professor who wrote it, to which the answer was "Yes, sort of', and whether it could be exported printed in a paper book, to which the answer was "Yes." People printed software on T-shirts that said, "This T-shirt is a munition." Companies such as Microsoft then poured money into civil liberties groups, annoyed that European encryption software firms were establishing markets close to them. Eventually, in the run-up to the 2000 election, Vice-President Gore caved in and removed most of the controls on the export of encryption software.
Before new Labour came to power, it adopted a strong position against the regulation of cryptography. Once it was in power, the line changed. The Government started putting out proposals for cryptoregulation that eventually, after much opposition and watering down, led to the Regulation of Investigatory Powers Act 2000. At the same time, consultation was started, and accelerated after the Scott report, on modernising the export control regime. A Green Paper came out in 1996 and a White Paper in 1998; the latter recommended the introduction of controls on transfer of technology by intangible means.
The best reference on this is the Trade and Industry Committee report of 10 December 1998 on strategic export controls. It took a critical view of the White Paper's line on intangible controls—paragraphs 37 to 42 are the key. The Committee found that the Government had no clear idea of the extent of the problem that the provisions sought to address, that there were grave doubts about the practicality of the proposals and fears for their consequences, and that there would be significant economic consequences such as the increase in costs of post-sales software maintenance and the support of online instructions manuals.
667 The Committee noted severe worries about the effects on the operation and standing of United Kingdom higher education. It recommended that intangible export controls, if introduced, should be limited to weapons of mass destruction, and that the Government should not agree to an extension of the European Union's dual-use regime, whose aim was to bring exports of dual-use goods outside the EU under harmonised control.
The Government's reaction was to encourage the EU to put through a dual regulation in 2000 which, on the face of it, extended controls on the export of dual-use goods from the EU to intangible transfers. The legal view taken at the time by the universities was that this regulation had no force in criminal law because it would take primary legislation to introduce a new criminal offence, namely, conveying information to foreigners without the permission of Government. DTI officials claimed that the regulations did indeed have criminal force, but when pressed for an explanation of which Act would be used to prosecute, they were unable to help.
None the less, the DTI went ahead and started implementing dual-use controls on the community of arms manufacturing companies that it regulates. For such a company, a direct legal challenge could have unpleasant consequences. The view of the Defence Manufacturers Association at the time was—and, for all I know, still is—that the regulations also applied to tens of thousands of other companies which were, for example, incorporating cryptography in all sorts of products and exporting them while blissfully unaware of the alleged new legal situation. The DTI did not educate the companies which were now supposedly subject to licensing.
The Bill gives the Government almost arbitrary powers to regulate intangible exports. Officials say that it will be used sparingly. However, the EU dual-use regulation, which they will at last be able to enforce, will itself prevent, for example, technology transfers relating to cryptography outside the EU. Other technologies on the dual-use list include a very large part of what the Ministry of Defence considers to be high tech and thus a great deal of what interests universities.
Officials have been telling two different stories to academia. To Universities UK, they said that the Bill will be used to take powers to license the teaching of certain subjects to certain students. In public—and in Parliament—Ministers denied that that was the case. Lord Sainsbury tried to finesse the issue by saying loudly and often that the licences would be needed not by the students, as the Opposition had said, but by the professors teaching them. That is pure casuistry, as the students' name would also appear on the licence. Universities UK, whose chief executive is Baroness Warwick, did not push the issue.
Ministers say that the needs of academia will be met by exemptions covering pure science and information being put in the public domain. Yet the current arrangements for research grants for the Engineering and Physical Sciences Research Council require applicants to describe their proposal's "relevance to beneficiaries". Thus a pure mathematician wanting to do work on elliptical curves will describe it as being highly relevant to cryptography, which is the key enabling technology for electronic commerce, thereby putting his head in the noose.
668 One academic told me that in 1997 he worked with scientists in Norway and Israel to develop cryptographic software for a competition run by the United States Government to find a replacement for a 1970s-generation encryption standard. DTI officials told him that in future, once they had intangible export controls in place, such an exchange would require a licence. As a result, the research would not get done. The conditions likely to be attached to such licences will not be acceptable to many universities or individual academics. Yet now we see Ministers equivocating as to whether a licence would be needed. In a letter to Baroness Warwick, Lord Sainsbury says thatit is likely that exchanges of the type described above would be authorised under the Open General Export Licence for Cryptographic Development.Yet that relates to commercial development and thus appears to exclude free software; it needs a formal agreement, which must be registered; it excludes Chinese nationals; it has an onerous record-keeping burden; and it excludes cryptanalysis. No really useful scientific work on ciphers can be done without cryptanalysis. It is like trying to design aeroplanes without either a wind tunnel or computational fluid dynamics codes with which to test the designs.
Ministers claim that placing information in the public domain will make it exempt. That means that if I were to invent a global positioning system jammer that rendered US smart munitions ineffective, I could put the design on my web page so that the Taliban could download it and build it.
However, if I were to give a talk at a closed conference—a NATO conference, for example—I should need to obtain an export licence, not only for the talk but for any slides that I wanted to e-mail in advance to the conference organisers. Such a provision would also interfere with academic-industry collaboration, as we would appear to need licences to attend progress meetings. Perhaps all the problems will be sorted out in time—but certainly not tonight or by the Bill.
Control on the export of goods mainly affects trade. Important though the freedom of movement of goods may be, it is easy to understand the prior claims of public policy on national security. As restrictions on trade threaten jobs, the resulting tension between the requirements of national security and of the economy tend naturally to produce the necessary checks and balances on the export control power.
Control over the export of ideas is radically different, however. Freedom of expression is a fundamental human right and gives way much less readily to the claims of the state. Moreover, the natural checks and balances that affect decisions on trade are lacking, as blocking a research project will not normally produce job losses or other evident short-term economic effects. The extension of control from the export of goods to the export of intangibles is thus a radical step with serious implications; it is not merely the closing of a tiresome, recently discovered loophole in existing controls.
Export control over goods applies straightforwardly to goods being exported; ideas are far harder to control. The difficulty of the attempt to impose control on the export of ideas leads to fears of evasion and thus to subsections 2(c) and 2(d) of clause 2 giving power to impose control 669 over the transfer of ideas—not their export but their exchange inside the UK. It is true that the power is qualified by the words(but only where there is reason to believe that the technology may be used outside the United Kingdom)".That is no help at all, however, as Universities UK has plainly told the DTI.
First, if the power can be used whenever technology may be used abroad, it can be used in practically every case, because any communication or publication of information may lead to its being used abroad. Secondly, if the power is used to impose controls that apply wherethere is reason to believe that the technology may be used outside the United Kingdom",leaving it to the publisher or communicator to judge at his or her peril whether the control applies, the risk will be too high for many people. It is certainly obvious that there is always reason to believe that technology taught to foreign students may be used outside the United Kingdom, and therefore a clear power is needed to impose controls and licensing requirements on such students.
Two exemptions are needed to secure academic freedom; one relating to the public domain, and the second relating to the, in essence, private processes of research before publication. The public domain exemption divides into two elements: first, material already in the public domain and, secondly, the publication of the results of research that puts that material into the public domain. There should be no power to impose control on either of those processes.
The Minister disclaims any intention of imposing such controls, and points to the exemptions in the existing controls. Exemptions in present controls exist by grace and favour of the Minister. It is essential that they should be entrenched in primary legislation. Academic research involves much collaboration and communication between researchers. It is not made public as the research proceeds, and much of it may never be published. We all know about the false starts and rough drafts on the back of an envelope that are, in essence, private; their communication would not be protected by a public domain exemption. If the preliminary results are shared with research students, that may take place in seminars that are not open to the public, and would thus be equally unprotected by a public domain exemption.
What is required is an exemption for communications made in the ordinary course of academic research and teaching. The Minister referred to an exemption in existing controls for "basic scientific research", but there are two flaws. The first is that such exemptions are far too important to be left to secondary legislation. The second is that "basic scientific research" is far too narrowly defined, by being limited to exclude work with practical application. The Minister's Department insists that research grant applicants explain their work's "relevance to beneficiaries", thus ensuring that applicants classify their work in such a way as to take it outside the "basic scientific research" exemption.
The Minister offered a justification for not including the existing exemptions in the Bill: the definitions of 670 "public domain" and "basic scientific research", which are used in the exemptions, are derived from international agreements and might be changed when those agreements are revised; and it would be inconvenient if he had to promote primary legislation to reflect those changes in UK law. Such an explanation fuels the very fears that he is trying to allay. The very purpose of pressing to include those exemptions in the Bill is to make it as hard as possible for them to be removed or changed. The mere fact that the Minister or his officials might agree with one or more of their counterparts abroad that it would suit them to remove or narrow down the exemptions should certainly not be enough to enable them to effect that change in UK law. Academic freedom is far too important to be exposed to dilution through horse-trading between Governments. It is far from reassuring that a Minister with responsibility for science should apparently put his own legislative convenience above the importance of academic freedom.
Lords amendment No. 4 deals with internal transfers, or imports, of technology, not its export, which is what the Bill should be limited to. The provisions would expose to control academic teaching and collaborative research within the UK—especially the teaching of foreign students—and also the publication in the UK of research work undertaken in this country or abroad.
The only justification offered for the provisions is that they will prevent evasion by foreigners visiting the UK to obtain controlled technology; but that justification is wholly inadequate. If transfers are made in the UK for the purpose of sending information abroad, in breach of controls, the parties involved are guilty of conspiracy to commit breaches of the controls and can be prosecuted accordingly. The powers are far too wide for that purpose.
There have been controls on the export of goods for many years, without any equivalent extension for controls on their transfer within the UK "to prevent evasion": the supposed loophole does not exist. It is unnecessary to prohibit the transfer inside the UK, as export by a foreigner is controlled-that is sufficient. It is no answer to say that a foreigner can carry the technology abroad inside his head.
Controls on intangibles such as technology should apply to the equivalent of controlled documents: the UK argued successfully for that very principle to be reflected in the EU dual-use regulation, where article 2 defines "export" as includingtransmission of software or technology by electronic media, fax or telephone to a destination outside the Community; this applies to oral transmission of technology by telephone only where the technology is contained in a document the relevant part of which is read out over the telephone, or is described over the telephone in such a way as to achieve substantially the same result.It is clear that what should be controlled are not general ideas or the results of education or training, as they are inevitably capable of being carried inside the recipient's head, but the electronic equivalent of technical documents. The foreigner visiting the UK to obtain controlled technology must thus breach export controls to send it abroad, and would be caught by controls imposed under (2)(a) or (2)(b), without (2)(c) or (2)(d) being necessary.
There are enormous problems with Lords amendment No. 10. It relates to protection of what is already in the public domain or is being published. Subsection (1)(c) deals with unpublished information being exchanged in 671 the course of teaching or research. Subsection (2) makes it clear that there would be no conflict with the secrecy provisions under the Patents Act 1977, or with obligations under the Official Secrets Act 1911 or similar obligations.
Weapons of mass destruction and their associated missile programmes are a special case. Subsection (1)(c) ensures that controls can still be applied to unpublished information in the case of teaching and research; and subsection (3) tracks the special provisions applicable under article 4 of the dual-use regulation in respect of exports outside the European Community, thus avoiding any apparent conflict between the Bill and the regulation.
Lords amendment No. 16 relates to clause 7 which is inadequate to protect academic freedom for three reasons. First, it leaves the Minister to decide the matter; all he has to do is to take into consideration the need to do so. When a Minister claims that national security and so on override academic freedom, the courts almost never interfere.
Secondly, the clause gives no protection to anything to which the general public have no access. That may include the contents of lectures—so far as they are not previously published—and will certainly include all pre-publication interchanges between academic researchers. Thirdly, it fails to impose any duty on the Minister to grant licences under the dual-use regulations.
So the whole proposition is not founded on reality and it involves a misunderstanding of the academic world in this country. Defence manufacturers agree that there should be an equality of approach. They are not asking to be exempt from certain controls, and they are keen that academics should not be exempt from certain controls. The Bill has not got the right balance, but Lords Amendment No. 10 has, and I very much hope that the Minister will bear that in mind because we shall certainly disagree with him if he presses the matter to a vote.
§ Alan Howarth (Newport, East)
In considering these amendments, we seek to reconcile two imperatives, which, if not in contradiction, are certainly in tension. Of course we need to prevent the transfer of knowledge that would assist terrorists in pursuing their aims, as well as those who seek to develop weapons of mass destruction. As a member of the Intelligence and Security Committee, I certainly do not understate the importance of that. Equally, however, we need to protect academic freedom.
Those who have expressed their anxieties in relation to academic freedom—notably, Universities UK and Save British Science—are not opposed to the Government's legitimate aim of preventing the transfer of technology for use in terrorism or mass destruction, but they are, as I am, critical of the very loose drafting of the clauses that relate to those matters.
I believe that the proponents of both sides of the argument are acting in good faith. Of course the Government want the universities to thrive if only because they know how important that is to our economy, and the Government encourage our universities to attract foreign students and academics to study and carry out research in this country.
It is genuinely difficult to reconcile those two imperatives and to find effective means to regulate the exchange of information and ideas, of intangibles. Universities have expressed the concern that activities that are routine in the global academic community— 672 collaborative research, exchanging and debating ideas through e-mails and holding international conferences—could be put at risk under those provisions.
Hon. Members ought to express our thanks to Members of the other place—unreformed though it may be—for their vigilance in the interests of academic freedom. It might have been possible for Ministers who are members of the Government's legislative programme committee to have noted the possible threats to academic freedom when the Bill was originally proposed. It may have been possible for hon. Members to have observed the same things earlier in our proceedings. The Quadripartite Committee at any rate took evidence from Universities UK, drew the Government's attention to those issues and expressed its hope that a better balance might be struck.
It is not the first time that their lordships' House has been more vigilant than we have been in regard to academic freedom. Some 10 years ago, when the Further and Higher Education Bill was proceeding through Parliament in the winter of 1991 to 1992—I have to confess that I was the Minister responsible for the clauses on higher education—the Treasury, to my embarrassment and anger, insisted on intruding into the Bill a "he who pays the piper" clause, so enabling the Government to exercise some direction and restraint on academic activity. At the time, a number of peers—in particular, Lord Beloff and Lord Renfrew—made some very fine speeches in support of the principle of academic freedom. They were thorns in our side as the Government, but they were absolutely right to make those points.
Academic freedom matters profoundly, and Governments should be more careful of it than they are. As my hon. Friend the Minister has noted, the EU dual-use regulation removes certain discretion from the Government, but that does not mean that they should not be extremely careful in exercising their discretion. There is too much instrumentalism in Whitehall's approach to higher education and Governments are not customarily sufficiently tender towards academic freedom and academic sensibilities. No one, however, as far as I am aware, is impugning the good faith and good sense of the Ministers who are responsible for the Bill.
After all, my right hon. Friend the Secretary of State for Trade and Industry was a director of the National Council for Civil Liberties in a previous incarnation. She certainly cannot be indifferent to considerations involving academic freedom. The Minister for Science and Innovation, Lord Sainsbury, is passionate about supporting science in our universities. My hon. Friend the Minister has two universities in his constituency, and no one is more diligent in keeping lines of communication open to his constituents, so he does not underestimate those considerations.
Having made those points, I must say that it is profoundly undesirable that we should have primary legislation on the statute book that a future Government could construe illiberally, so severely damaging academic freedom. Of course there are differences of interpretation about the significance of the drafting of the relevant clauses and amendments. I certainly do not agree with some of the more lurid accounts that have been expressed in previous parliamentary proceedings, but I attach 673 considerable weight to the testimony of Lord May of Oxford, the Government's former chief scientific adviser and an immensely distinguished scientist, who said:We need to be especially careful about how we limit academic freedom. The exceptional circumstances need to be spelled out clearly and carefully, and not in sweeping general terms…I support the spirit of this group of amendments."—[Official Report, House of Lords, 18 April 2002; Vol. 633, c. 1119.]I understand that the lawyers who have advised Universities UK have expressed the opinion—although in terms perhaps a little milder than those just used by the hon. Member for Salisbury (Mr. Key)—that clause 2, as drafted, may give the Government the right of prior review of scientific publications and that clauses 2 and 3 might give officials the power to require that foreign research students should be licensed and that the present voluntary vetting system should be made compulsory. They suggest that clauses 2, 3 and 4 would threaten routine academic activities in a variety of ways through the power to impose export and trade controls on intangibles—matters such as software, e-mails, presentation slides, manuals and training programmes. They also express a broad concern that the definitions in the Billare so wide that essentially all science and technology falls within it.So their lordships passed amendment No. 10, which is, of course, deficient. The Minister powerfully explained its inadequacies, but the underlying principles are right: the Government should unambiguously affirm in the Bill their commitment to academic freedom, any exceptions should be specific and the safeguards for academic freedom should be clearly stated in primary legislation. Correspondingly, the Government introduced Lords Amendment No. 16, and we should be appreciative of that. However—this is a legitimate concern—it is loosely drawn and there are respectable fears that it could be too weak in its application.
Lord Amendment No. 16 states that the Governmentshall have regard to the need to avoid any unreasonable restriction".I had hoped that the Government would do rather better and draft a clause that would be more stringent and better focused in its effect. The Secretary of State will be left with a great deal of discretion. We are told that the European convention on human rights, which is incorporated in our domestic law, would provide further safeguards, but as Lord May observed, that is a cumbersome and protracted remedy. However, no better clause has been tabled. I am a little surprised, given the extent of academic concern about this issue, that academic lawyers have not been able to propose a preferable version, but we will have to live with Lords Amendment No. 16.
In conclusion, I ask my right hon. and hon. Friends to add whatever safeguards they can to the existing provisions on affirmative procedure, and to requiring modifications to the schedule to be exposed in draft. I was very happy to hear my hon. Friend the Under-Secretary reaffirm today the Government's commitment to maximise academic freedom. I hope, however, that the Government will introduce a formal statement that would 674 be justiciable and further case studies to demonstrate exactly what their intention is. The orders will need to be tightly drawn with maximum specificity and minimum scope.
In preparation of the orders, I hope that my right hon. and hon. Friends will undertake to confer with the Secretary of State for Education and Skills and with UUK. I welcome the Government's express willingness this evening to continue to work with UUK.
The scope for parliamentary scrutiny of orders is always too flimsy, but Parliament must do its best to retrieve its failures in relation to the measure and to seek whatever opportunities that it can to put further stakes in the ground in defence of academic freedom.
§ Nigel Griffiths
With the leave of the House, I shall respond briefly in the 60 seconds that are left to me. I thank the hon. Member for Salisbury (Mr. Key) and my right hon. Friend the Member for Newport, East (Alan Howarth) for their thoughtful points.
The amendment has been considered in great detail in the House of Lords, and, in the spirit with which it has been raised by Baroness Warwick and others representing the universities, in terms of the need to ensure that we do not do anything to impede or attack academic freedoms.
I assure the House that the Bill will not, in practice, affect the regulation of cryptography in so far as that is controlled by the European dual-use regulations. Cryptography on an open website, however. would be in the public domain, arid, therefore, would not be subject to control. We also want to control the fact that a professor who knowingly transmits information to any particular—
§ It being three hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to Order [this day], put forthwith the Question already proposed from the Chair.
§ The House divided: Ayes 288, Noes 129.677
|Division No. 279]||[7.32 pm|
|Abbott, Ms Diane||Brennan, Kevin|
|Adams, Mrs Irene (Paisley N)||Brown, Rt Hon Nicholas|
|Ainger, Nick||(Newcastle E & Wallsend)|
|Ainsworth, Bob (Cov'try NE)||Brown, Russell (Dumfries)|
|Alexander, Douglas||Bryant, Chris|
|Allen, Graham||Buck, Ms Karen|
|Anderson, Janet (Rossendale)||Burden, Richard|
|Armstrong, Rt Hon Ms Hilary||Burgon, Colin|
|Atherton, Ms Candy||Burnham, Andy|
|Austin, John||Cairns, David|
|Baird, Vera||Campbell, Alan (Tynemouth)|
|Barron, Rt Hon Kevin||Campbell, Mrs Anne (C'bridge)|
|Battle, John||Campbell, Ronnie (Blyth V)|
|Bayley, Hugh||Caplin, Ivor|
|Beard, Nigel||Casale, Roger|
|Begg, Miss Anne||Caton, Martin|
|Bell, Stuart||Cawsey, Ian|
|Bennett, Andrew||Challen, Colin|
|Berry, Roger||Chaytor, David|
|Best, Harold||Clapham, Michael|
|Betts, Clive||Clark, Paul (Gillingham)|
|Blackman, Liz||Clarke, Rt Hon Tom (Coatbridge)|
|Blears, Ms Hazel||Clelland, David|
|Blizzard, Bob||Clwyd, Ann|
|Borrow, David||Coaker, Vernon|
|Bradley, Rt Hon Keith (Withington)||Coffey, Ms Ann|
|Bradley, Peter (The Wrekin)||Cohen, Harry|
|Bradshaw, Ben||Coleman, Iain|
|Colman, Tony||Hoyle, Lindsay|
|Connarty, Michael||Hughes, Beverley (Stretford)|
|Cook, Rt Hon Robin (Livingston)||Hughes, Kevin (Doncaster N)|
|Cooper, Yvette||Humble, Mrs Joan|
|Corbyn, Jeremy||Hurst, Alan|
|Corston, Jean||Hutton, Rt Hon John|
|Cousins, Jim||Iddon, Dr Brian|
|Crausby, David||Ingram, Rt Hon Adam|
|Cruddas, Jon||Jackson, Helen (Hillsborough)|
|Cryer, John (Hornchurch)||Jamieson, David|
|Cummings, John||Jones, Helen (Warrington N)|
|Cunningham, Rt Hon Dr Jack (Copeland)||Jones. Jon Owen (Cardiff C)|
|Cunningham, Jim (Cov'try S)||Jones, Kevan (N Durham)|
|Cunningham, Tony (Workington)||Jones, Lynne (Selly Oak)|
|Dalyell, Tam||Jones. Martyn (Clwyd S)|
|Davey, Valerie (Bristol W)||Joyce, Eric|
|David, Wayne||Keeble, Ms Sally|
|Davies, Rt Hon Denzil (Llanelli)||Keen. Alan (Feltham & Heston)|
|Davies, Geraint (Croydon C)||Kennedy, Jane (Wavertree)|
|Dawson, Hilton||Khabra, Piara S|
|Denham, Rt Hon John||Kidney, David|
|Dhanda, Parmjit||King, Andy (Rugby & Kenilworth)|
|Dismore, Andrew||Knight, Jim (S Dorset)|
|Dobbin, Jim||Kumar, Dr Ashok|
|Dobson, Rt Hon Frank||Lammy, David|
|Donohoe, Brian H||Lawrence, Mrs Jackie|
|Doran, Frank||Laxton, Bob|
|Dowd, Jim||Lazarowicz, Mark|
|Drew, David||Lepper, David|
|Drown, Ms Julia||Leslie, Christopher|
|Eagle, Maria (L'pool Garston)||Levitt, Tom|
|Edwards, Huw||Lewis, Terry (Worsley)|
|Ellman, Mrs Louise||Love, Andrew|
|Ennis, Jeff||Lucas, Ian|
|Field, Rt Hon Frank (Birkenhead)||Luke, Iain|
|Fitzpatrick, Jim||Lyons, John|
|Flint, Caroline||McCartney, Rt Hon Ian|
|Foster, Rt Hon Derek||MacDonald, Calum|
|Foster, Michael (Worcester)||McDonnell, John|
|Foster, Michael Jabez (Hastings)||MacDougall, John|
|Foulkes, George||McFall, John|
|Francis, Dr Hywel||McGuire, Mrs Anne|
|Gapes, Mike||McIsaac, Shona|
|Gardiner, Barry||McKechin, Ann|
|George, Rt Hon Bruce (Walsall S)||McKenna, Rosemary|
|Gerrard, Neil||McNulty, Tony|
|Gibson, Dr Ian||MacShane, Denis|
|Gilroy, Linda||Mactaggart, Fiona|
|Godsiff, Roger||McWilliam, John|
|Goggins, Paul||Mahon, Mrs Alice|
|Griffiths, Nigel (Edinburgh S)||Mallaber, Judy|
|Hall, Mike (Weaver Vale)||Mann, John|
|Hall, Patrick (Bedford)||Marris, Rob|
|Hamilton, David (Midlothian)||Marsden, Gordon (Blackpool S)|
|Hanson, David||Marshall, Jim (Leicester S)|
|Harris, Tom (Glasgow Cathcart)||Marshall—Andrews, Robert|
|Havard, Dai||Martlew, Eric|
|Healey, John||Michael, Rt Hon Alun|
|Henderson, Doug (Newcastle N)||Miliband, David|
|Henderson, Ivan (Harwich)||Miller, Andrew|
|Hendrick, Mark||Moffatt, Laura|
|Hepburn, Stephen||Mole, Chris|
|Heppell, John||Moonie, Dr Lewis|
|Hewitt, Rt Hon Ms Patricia||Mountford, Kali|
|Heyes, David||Mudie, George|
|Hill, Keith||Mullin, Chris|
|Hinchliffe, David||Munn, Ms Meg|
|Hodge, Margaret||Murphy, Denis (Wansbeck)|
|Hoey, Kate||Murphy, Jim (Eastwood)|
|Hoon, Rt Hon Geoffrey||Murphy, Rt Hon Paul (Torfaen)|
|Hope, Phil||Naysmith, Dr Doug|
|Hopkins, Kelvin||O'Brien, Mike (N Warks)|
|Howarth, Rt Hon Alan (Newport E)||O'Neill, Martin|
|Howarth, George (Knowsley N)||Organ, Diana|
|Howells, Dr Kim||Osborne, Sandra (Ayr)|
|Pickthall, Colin||Speller, Rt Hon John|
|Pike, Peter||Squire, Rachel|
|Plaskitt, James||Starkey, Dr Phyllis|
|Pollard, Kerry||Steinberg, Gerry|
|Pond, Chris||Stewart, David (Inverness E)|
|Prentice, Gordon (Pendle)||Stinchcombe, Paul|
|Primarolo, Dawn||Stoate, Dr Howard|
|Prosser, Gwyn||Strang, Rt Hon Dr Gavin|
|Purchase, Ken||Tami, Mark|
|Purnell, James||Taylor, Rt Hon Ann (Dewsbury)|
|Quin, Rt Hon Joyce||Taylor, Ms Dari (Stockton S)|
|Rapson, Syd||Thomas, Gareth (Harrow W)|
|Raynsford, Rt Hon Nick||Timms, Stephen|
|Reed, Andy (Loughborough)||Tipping, Paddy|
|Robertson, John (Glasgow Anniesland)||Touhig, Don|
|Robinson, Geoffrey (Cov'try NW)||Trickett, Jon|
|Rooney, Terry||Truswell, Paul|
|Ross, Ernie||Turner, Dennis (Wolverh'ton SE)|
|Roy, Frank||Turner, Dr Desmond (Kemptown)|
|Ruane, Chris||Turner, Neil (Wigan)|
|Ruddock, Joan||Twigg, Stephen (Enfield)|
|Russell, Ms Christine (Chester)||Vaz, Keith|
|Salter, Martin||Ward, Claire|
|Sarwar, Mohammad||Wareing, Robert N|
|Savidge, Malcolm||Watson, Tom|
|Sawford, Phil||Watts, David|
|Sedgemore, Brian||Whitehead, Dr Alan|
|Shaw, Jonathan||Wicks, Malcolm|
|Sheerman, Barry||Williams, Rt Hon Alan (Swansea W)|
|Sheridan, Jim||Williams, Mrs Betty (Conwy)|
|Shipley, Ms Debra||Wills, Michael|
|Short, Rt Hon Clare||Winnick, David|
|Simon, Siôn||Winterton, Ms Rosie (Doncaster C)|
|Simpson, Alan (Nottingham S)||Woodward, Shaun|
|Skinner, Dennis||Woolas, Phil|
|Smith, Rt Hon Andrew (Oxford E)||Worthington, Tony|
|Smith, Angela (Basildon)||Wright, Anthony D (Gt Yarmouth)|
|Smith, Rt Hon Chris (Islington S)||Wright, David (Telford)|
|Smith, Jacqui (Redditch)||Wyatt, Derek|
|Smith, John (Glamorgan)||Tellers for the Ayes:|
|Smith, Llew (Blaenau Gwent)||Mr. Ian Pearson and|
|Soley, Clive||Joan Ryan.|
|Ainsworth, Peter (E Surrey)||Fabricant, Michael|
|Arbuthnot, Rt Hon James||Fallon, Michael|
|Atkinson, Peter (Hexham)||Field, Mark (Cities of London)|
|Bacon, Richard||Flight, Howard|
|Baldry, Tony||Flook, Adrian|
|Barker, Gregory||Forth, Rt Hon Eric|
|Baron, John||Fox, Dr Liam|
|Bellingham, Henry||Francois, Mark|
|Bercow, John||Gale, Roger|
|Beresford, Sir Paul||Gibb, Nick|
|Blunt, Crispin||Gillan, Mrs Cheryl|
|Boswell, Tim||Gray, James|
|Bottomley, Peter (Worthing W)||Grayling, Chris|
|Bottomley, Rt Hon Virginia||Green, Damian (Ashford)|
|Browning, Mrs Angela||Greenway, John|
|Burnside, David||Grieve, Dominic|
|Burt, Alistair||Hague, Rt Hon William|
|Cameron, David||Hammond, Philip|
|Cash, William||Hawkins, Nick|
|Chope, Christopher||Hayes, John|
|Clappison, James||Heald, Oliver|
|Clifton—Brown, Geoffrey||Hendry, Charles|
|Collins, Tim||Hoban, Mark|
|Conway, Derek||Horam, John|
|Cormack, Sir Patrick||Howard, Rt Hon Michael|
|Davis, Rt Hon David (Haltemprice)||Howarth, Gerald (Aldershot)|
|Djanogly, Jonathan||Hunter, Andrew|
|Duncan, Alan (Rutland amp; Melton)||Jackson, Robert (Wantage)|
|Evans, Nigel||Jenkin, Bernard|
|Ewing, Annabelle||Johnson, Boris (Henley)|
|Key, Robert||Selous, Andrew|
|Kirkbride, Miss Julie||Simmonds, Mark|
|Laing, Mrs Eleanor||Spelman, Mrs Caroline|
|Lansley, Andrew||Spicer, Sir Michael|
|Letwin, Oliver||Spink, Bob|
|Lewis, Dr Julian (New Forest E)||Spring, Richard|
|Liddell—Grainger, Ian||Steen, Anthony|
|Lidington, David||Streeter, Gary|
|Lilley, Rt Hon Peter||Swire, Hugo|
|Llwyd, Elfyn||Syms, Robert|
|Loughton, Tim||Tapsell, Sir Peter|
|Luff, Peter||Taylor, Ian (Esher & Walton)|
|McIntosh, Miss Anne||Taylor, Sir Teddy|
|MacKay, Rt Hon Andrew||Thomas, Simon (Ceredigion)|
|McLoughlin, Patrick||Trend, Michael|
|Malins, Humfrey||Turner, Andrew (Isle of Wight)|
|Mawhinney, Rt Hon Sir Brian||Tyrie, Andrew|
|May, Mrs Theresa||Viggers, Peter|
|Mercer, Patrick||Waterson, Nigel|
|Moss, Malcolm||Watkinson, Angela|
|Murrison, Dr Andrew||Weir, Michael|
|Norman, Archie||Whittingdale, John|
|O'Brien, Stephen (Eddisbury)||Widdecombe, Rt Hon Miss Ann|
|Osborne, George (Tatton)||Wiggin, Bill|
|Ottaway, Richard||Willetts, David|
|Page, Richard||Williams, Hywel (Caernarfon)|
|Paice, James||Wilshire, David|
|Pickles, Eric||Winterton, Ann (Congleton)|
|Price, Adam||Winterton, Sir Nicholas (Macclesfield)|
|Prisk, Mark||Wishart, Pete|
|Robathan, Andrew||Yeo, Tim|
|Robertson, Angus (Moray)||Young, Rt Hon Sir George|
|Robertson, Laurence (Tewk'b'ry)|
|Roe, Mrs Marion||Tellers for the Noes:|
|Rosindell, Andrew||Mr. Desmond Swayne and|
|Ruffley, David||Mr. Julian Brazier.|
§ Question accordingly agreed to.
§ Lords amendment No. 13 and Government amendment (a) thereto agreed to.
§ Lords amendments Nos. 3, 4 and 6 disagreed to.
§ Lords amendments Nos. 2, 5, 7 to 9, 11, 12, 14 to 16 and 18 to 30 agreed to.
§ Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their amendments to the Bill; Dr. Vincent Cable, Nigel Griffiths, Mr. Robert Key, Mr. Bob Laxton and Mr. Ian Pearson; Nigel Griffiths to be the Chairman of the Committee; Three to be the quorum of the Committee.—[Angela Smith.]
§ To withdraw immediately.
§ Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.