Lords Sitting of 18 April 2002

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of. Manchester.): The LORD CHANCELLOR on the Woolsack.

Gibraltar
Baroness Cox Baroness Cox asked Her Majesty's Government:
What is their policy with regard to the future of Gibraltar.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, talks under the Brussels process are continuing. Our aim remains a comprehensive agreement covering all outstanding issues, including co-operation and sovereignty, by the summer. We firmly believe that that represents the best way to build a secure, stable and prosperous future for Gibraltar.
I remind your Lordships that there will be no changes on the constitutional position of Gibraltar without the consent of the people of Gibraltar in a referendum.
Baroness Cox: My Lords, I thank the Minister for that Answer, which is part reassuring and part disturbing. Is she aware of the recent petition to Her Majesty the Queen, delivered by the women of Gibraltar with more than 15,000 signatures, and the recent demonstrations in Gibraltar with more than 20,000 people expressing their overwhelming wish that the vast majority of the people of Gibraltar should remain British citizens, but also their concern about the agreement to which the Minister referred?
Will she indicate whether there is any danger that the making of such agreements might violate the Gibraltar Constitution Order which guaranteed that Her Majesty's Government would never enter into any arrangements against the freely and democratically expressed wishes of the people of Gibraltar? In the event of such agreements being voted against by the people of Gibraltar, will those arrangements be dissolved?
Baroness Symons of Vernham Dean: My Lords, I am aware of the petition to which the noble Baroness referred and of the demonstrations which took place in Gibraltar. Together with my colleague the Minister for Europe, I met trade union representatives and I am very aware of the strength of feeling about the issue.
However, I reiterate that there will be no change in the constitutional position without the express agreement of the people of Gibraltar. The noble Baroness seems to think that there is doubt about that,
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so perhaps I may remind her of what my right honourable friend the Prime Minister said on 20th March:
"There can and will be no change to the constitutional position of Gibraltar without the consent of the people of Gibraltar".
Mr Caruana, the Chief Minister, said in his New Year message:
"Both the Prime Minister and Foreign Secretary have made it clear in parliamentary Statements that there will be no change in the sovereignty of Gibraltar against our wishes".
He went on to say very tellingly:
"I believe that assurance is totally reliable".
Lord Hoyle: My Lords, will my noble friend assure the House that if the proposed deal is rejected in a referendum by the people of Gibraltar, it will be taken off the table?
Baroness Symons of Vernham Dean: My Lords, as the Foreign Secretary stated, if the proposals emerging from the Brussels process are not accepted, they cannot evaporate—we cannot deny that they represent this Government's opinion on the best way forward. What we can say categorically is that if they are rejected by the people of Gibraltar, they cannot be implemented. They remain simply matters of agreement on a possible way forward between ourselves and the Spanish Government, but they cannot be implemented without the express agreement of the people of Gibraltar.
Lord Howell of Guildford: My Lords, there is some ambiguity in what the Minister is saying. I understand that the Foreign Secretary has made it clear that if the people of Gibraltar turn the deal down—as, of course, they will—the whole matter lapses. However, the Minister appears to be saying no, it will continue and somehow go on the back-burner and leave Gibraltar in a constant situation of doubt and unsettlement. Which is it: is the Foreign Secretary right or is the Minister right?
Baroness Symons of Vernham Dean: My Lords, to the best of my knowledge, both the Foreign Secretary and I are right because to the best of my knowledge I have reiterated the view expressed by the Foreign Secretary. I believe that the noble Lord will find that that is consistent with what my right honourable friend the Minister for Europe said in dealing with these questions in another place earlier this week. It is clear that if the proposals are rejected by the people of Gibraltar, they cannot be implemented.
Lord Watson of Richmond: My Lords, does the Minister agree with the sentiment expressed wisely in this House when the subject of Gibraltar last arose at Question Time: that for there to be a sensible conclusion on Gibraltar, there must be solid, strong evidence of good faith and good will on the part of the Spanish Government? That was one month ago. Has there been any such solid evidence in the time that has elapsed?
Baroness Symons of Vernham Dean: My Lords, I believe that there has to a certain extent. I am sure that

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many examples will be claimed of misunderstandings and difficulties, but one of the best examples of progress has been the issue surrounding border delays. There have been considerable improvements in the delays which ranged from 30 to 90 minutes for people trying to enter Gibraltar. Those delays have been cut considerably to an average of 10 minutes. That is a result of putting in two channels in order to enter Gibraltar. I fully realise that others will adduce other arguments, but that is a piece of good evidence.
Lord Maginnis of Drumglass: My Lords—
Lord Thomas of Swynnerton: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, may we hear from the noble Lord, Lord Thomas of Swynnerton?
Lord Thomas of Swynnerton: My Lords, recognising that the Government believe that Gibraltar is a problem to be solved rather than a redoubt to be defended, would not the Minister believe that the idea of a joint sovereignty between Britain and Spain a very positive suggestion for the future?
Baroness Symons of Vernham Dean: My Lords, the fact that there is an issue to be solved around Gibraltar has been recognised not only by Her Majesty's Government but also by the noble and learned Lord, Lord Howe, who I am sorry to see is not in his place, and by others in the previous administration who worked to try to achieve a reasonable resolution of the issue.
I do not want to anticipate what will emerge from the discussions which my right honourable friends are having with their Spanish counterparts, but obviously the issue of joint sovereignty is likely to be one that has taken up a good deal of time in discussion. Whether it emerges in the final proposals, we shall have to wait and see.
Lord Radice: My Lords, does my noble friend agree that the Government are trying to reach a sensible agreement with Spain that is based on the long-term interests of the Gibraltarians? As my noble friend said, if an agreement is reached, it will be put to the Gibraltarians in a referendum. That being so, is not the sensible course for parliamentarians not to make a hasty judgment but to take a balanced long-term view on what the agreement produces?
Baroness Symons of Vernham Dean: My Lords, my noble friend has been most sensible, as was the noble and learned Lord, Lord Howe, when we previously discussed the matter. The noble and learned Lord from the other side of the House, and with a great deal of experience, made a similar point. The fact is that if one is putting proposals in a referendum, common sense dictates that they must be sufficiently attractive to those whom one is asking to vote upon them in order for one to have any chance of the issue going forward.
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The noble Lord, Lord Howell, says, "No, they are all going to disagree before we even start". I believe that that is a sad and negative view to take at this stage.
Noble Lords: Next Question!
Lord Swinfen: My Lords
Lord Williams of Mostyn: My Lords, we are into the ninth minute and it is not fair to other noble Lords who have tabled Questions.

Road Casualties
3.8 p.m.
Lord Bradshawasked Her Majesty's Government:
What actions they are proposing to reduce road deaths and accidents as outlined in the 10-year transport plan.
Lord Filkin: My Lords, the 10-year plan for transport referred to the Government's target to reduce road deaths and serious injuries in Britain by 40 per cent by 2010. Details of the wide range of measures that will deliver that and our other road safety targets are set out in the strategy document, Tomorrow's roads—safer for everyone, which was published in March 2000.
Lord Bradshaw: My Lords, I thank the Minister for that Answer. In view of the Government's reluctance to take action against people who use mobile phones, which we discussed on Monday, and the considerable tightening of the criteria of the siting of speed cameras, which makes it most difficult to erect them on new sites—indeed, many of the existing cameras are to be put into roadside storage—have they any chance of meeting the steep reductions in casualties which they anticipate?
Lord Filkin: My Lords, yes, we have. We are quietly positive about the progress so far. First, after two years of a 10-year programme, we are already one-third of the way towards achieving the death and serious injury target. Already there has been a 13 per cent reduction in deaths and serious injuries on our roads as compared with when the programme began. Secondly, with regard to child deaths and serious injuries, we are half way to meeting that target after two years. That has already produced a reduction of 24 per cent as compared with the base figures.
In no way are we complacent about these statistics. As the House well knows, every one of those deaths and serious injuries represents a tragedy, but there are no grounds for believing that we are off course on this. If anything, it is the reverse. That is a compliment to the British public, which has made a major contribution to the achievement of this improvement.
Lord Berkeley: My Lords, can my noble friend help me with regard to a question about human nature?

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From his earlier response, it seems that drivers recognise that if they do not see a bright red—a bright yellow—camera with warning signs, then they can speed with impunity. Given the proven link between higher speed driving and serious accidents, how will that reduce the number of accidents over the next 10 years?
Lord Filkin: My Lords, I regret to say that drivers will never see a bright red camera because they are to be painted yellow. However, perhaps that is beside the point. The purpose of speed cameras, which so far are being assessed in 15 pilot programmes which are to he further extended, is not to boost the Revenue by catching a great many people, but rather to help shift the behaviour of drivers. The issue is very serious. It does not concern trying to criminalise people, but trying to put across to the public that speed kills. Around 70 per cent of people are killed if they are hit by a car travelling at 35 miles per hour whereas if they are hit by a car travelling at 25 miles an hour, the percentage death rate is vastly lower. Thus it matters massively to reduce speed.
The extensive speed camera programme is already showing evidence that it is significantly reducing deaths and serious injuries wherever the cameras are located—by almost 50 per cent in the pilot areas.
Lord Geddes: My Lords, does the noble Lord agree that, to a certain extent, a factor which adds to the number of road deaths and accidents is the increasing tendency of push cyclists to ignore anything to do with the Highway Code? They ride on pavements and ride across red lights with impunity.
Lord Filkin: My Lords, I shall be careful of what I say about cyclists after my comments earlier in the week. Certainly most of us have noticed that there does seem to be some difference in the behaviour of cyclists; that is, not all cyclists. I do not think that anyone in this House is anti-cyclist. We want to see more people using bicycles rather than fewer. However, it would be good if cyclists used the road rather than the pavement and it would be good if they stopped at traffic lights. Clearly, if they do not, they have committed offences and they can he prosecuted.
Viscount Simon: My Lords, is my noble friend aware that within the Metropolitan Police district during 2001, the number of people killed on the roads in the district increased by 32 per cent over the previous year? In only slightly in excess of that 12-month period, the number of traffic officers on the road in the Metropolitan Police district had fallen by around 50 per cent. Would my noble friend like to hazard a guess as to whether there might be any correlation between the two?
Lord Fain: My Lords, I am not aware of either of those statistics. However, they are important and I shall certainly look at them after today's Question Time. It is possible that there is a connection, but I should have thought it unlikely. In a sense, the number
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of traffic officers does not have a particularly powerful effect on deterring dangerous situations. The issue concerns much more driver behaviour in a whole variety of circumstances. While one would expect the presence of more traffic police on the roads, like the presence of more traffic cameras, to have some effect, the fundamental issue is the one we talked about previously. Each of us, including myself, must take responsibility for our own behaviour on the roads. We must recognise that we can kill people if we do not observe the highest standards of behaviour. I do not think that any government have yet put that point over clearly to the public; namely, that we have to shift our own behaviour. It is not for someone else.
The Countess of Mar: My Lords, I found the noble Lord's response to the reduced number of traffic police officers on the road rather strange. Has he never been driving on a motorway when a police car has appeared? He would have noticed that everyone reduces their speed. When the noble Lord referred to cyclists being caught by the police, the point made by the noble Viscount, Lord Simon, is quite apparent: there are no traffic police officers about to catch those wretched cyclists who go over red lights and ride on the pavements. Could the noble Lord please look seriously at the situation with regard to the traffic police force?
Lord Filkin: My Lords, yes, the Government will look at it. We are committed to trying to make a very significant improvement in road safety standards. Clearly the police have a major part to play in that. However, I think that we are being assisted by the new technology. Speed cameras and traffic light cameras provide a more effective way of detecting offences than using highly skilled police resources, because they do not require the same amount of police time. Evidence so far from their use has been extremely positive. Nevertheless, I shall take up the suggestion put by the noble Countess.
Baroness Thomas of Walliswood: My Lords, can the Minister justify his claim of a 25 per cent reduction in road accidents when the numbers supplied by the Library to my noble friend show that in 1997, those killed and seriously injured numbered 46,500? The number for 2001 was 41,500. That represents a fall of only 5,000 out of 46,000, which translates to a reduction of 11 per cent.
Lord Filkin: My Lords, the detailed figures are no secret. They are published every quarter on the website. I have a copy of the latest set which I shall be happy to share with the noble Baroness after Question Time. In essence, the number of deaths and serious injuries recorded in 2000 was 41,564, which is 13 per cent lower than the base year; namely, the average of the years 1994–98, the latter of which was the latest year on which there were any statistics before the figures came into effect.

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Noble Lords may laugh; it is good to laugh. However, I do not think that we could achieve a fairer or more sensible base. The progress from that base—for which the Government do not take credit; that goes to the public—is significant. We have a long way further to go on this and by no means is this the position at which we want to remain.

Cancer Services
3.17 p.m.
Lord Clement-Jonesasked Her Majesty's Government:
Whether National Health Service cancer units are receiving the necessary resources to improve services.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the cancer plan is being backed by a large increase in funding for cancer services. Last year, funding rose by £280 million. This year it will be over £400 million.
Lord Clement-Jones: My Lords, I welcome the Minister's reply, but the recent report of the Science and Technology Committee demonstrates that only one-eighth of the £280 million allocated to cancer services has actually been received by those cancer services. The committee stated:
"We consider it dissembling to allocate funding to cancer care with great publicity without taking even the simplest precaution to ensure that it reaches the intended areas".
Do the Chancellor's Statement yesterday and the Secretary of State's Statement today demonstrate that the Government will now move from hypothecation and earmarking to trying to ensure that the money is spent in the proper places?
Lord Hunt of Kings Heath: My Lords, what my right honourable friend the Chancellor made clear in his Statement yesterday is our fundamental support for the principle of the NHS and the provision of resources to support it over many years to come. With regard to the question of hypothecation and allocations, the noble Lord will know that the Government regard cancer services as a priority. That is why we have identified the sums of money that we believe should be spent by the National Health Service. Of course we will be responding to the report of the Select Committee in the other place in due course. However, the targets and the outcomes that have been set for the delivery of the cancer plan are making encouraging progress. Of course we will monitor the spending of resources and in the future we shall discuss those matters with strategic health authorities. However, I am satisfied that good progress is being made.
Baroness Masham of Ilton: My Lords, does the Minister agree that there is a serious shortage of
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radiographers and radiologists, who are vital for the quick and efficient diagnosis of the disease? Will he do something about it?
Lord Hunt of Kings Heath: My Lords, I agree with the noble Baroness and I pay tribute to the work undertaken by radiotherapy departments. Staffing levels of therapy radiographers have increased by more than 9 per cent since 1997. We wish to continue to make progress in that area.
Baroness Hayman: My Lords, while yesterday's announcements were enormously welcome in terms of both funding and accountability for the health service, my noble friend will be aware that there have been grave concerns about the ineffective ring-fencing of moneys under the cancer plan for last year. I declare an interest, of which the House is aware, as chairman of Cancer Research UK. Can my noble friend give some reassurance on both the monitoring of spending this year in order that this year's allocation will not be subject to such widespread doubt, and, equally, on the publication of the figures for last year's spending? If, as is feared, there has been a grave shortfall, will he give an undertaking that that will be made good?
Lord Hunt of Kings Heath: My Lords, I doubt very much whether any hard evidence is available at the moment to suggest a grave shortfall. We shall monitor the end-of-year figures. I have already given an undertaking to the noble Lord, Lord Clement-Jones, to discuss those with strategic health authorities because clearly the matter will need to be taken forward in discussions about future allocations. I reiterate that considerable progress is being made in the area of cancer services through an increase in staff numbers and equipment, and in delivery on the two-week wait target. I am satisfied that the NHS is doing a great deal to ensure that we deliver on the cancer plan targets.
Earl Russell: My Lords, I recently visited a patient in the intensive care unit of one of the best London teaching hospitals, for which I have nothing but praise. That hospital had no working morphine pump. Does the Minister agree that when money becomes available it must be used for purposes such as that—paying debts and mending holes in the roof—before it improves the services? The job is similar to feeding a famine victim—it cannot be done rapidly. Will he try to ensure that the press remembers that?
Lord Hunt of Kings Heath: My Lords, I agree that we cannot turn around overnight a service such as the NHS. That is why we need the step change approach taken by the Government and the levels of investment that we have announced. As to equipment, I shall certainly look into the specific matter raised by the noble Earl. I agree that it is vital to get more equipment into cancer services. We are doing so. We also need to ensure that the fabric of the buildings in which the equipment is provided is put right.
Lord Wade of Chorlton: My Lords, is the Minister aware that at the Christie Hospital in Manchester we

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now have the leading radiotherapy research centre in the world? We have recently installed the latest equipment available anywhere in the world. We paid for it entirely through funds raised locally, without any government resources—and no one was taxed a penny.
Lord Hunt of Kings Heath: My Lords, I am very glad to hear that.

Smallpox Vaccine Contract
3.23 p.m.
Baroness Noakesasked Her Majesty's Government:
Whether the contract awarded to PowderJect Pharmaceuticals to supply smallpox vaccine was subject to full competitive tendering.
Lord Hunt of Kings Heath: My Lords, the contract awarded to PowderJect Pharmaceuticals was not subject to full competitive tendering. As this procurement concerns national security, it falls outside the usual rules governing competitive tendering.
Baroness Noakes: My Lords, I thank the Minister for that Answer. Does he agree with his noble friend Lord Haskins, who is in his place, that there was no reason for not having a fully open and transparent bidding process? Will he comment on the Prime Minister's statement in another place yesterday that,
"many companies were asked to tender".—[Official Report, Commons, 17/4/02; col. 567.]?
Lord Hunt of Kings Heath: My Lords, I very often agree with my noble friend and pay tribute to the work that he has undertaken in the area of better regulation, but I do not agree with the remarks reported to have been made in the media. The situation is this. As smallpox has been eradicated since the 1970s, its reintroduction is likely to occur only as a result of terrorist activity. This raises issues of national security and our preparedness to deal with such an attack is not a matter to be put in the public domain. In seeking to establish which vaccine manufacturing companies might be able to provide new vaccine to meet our requirements, we therefore took the decision that purchase of the new vaccine would fall outside the usual open competitive tendering process. A number of companies were approached and the decision was eventually made to give the contract to the company that best met the specifications.
Lord Mackie of Benshie: My Lords, has the Minister read today's Guardian?
Lord Hunt of Kings Heath: No, my Lords. I prefer to avoid reading the Guardian if I can.
Lord Criickhowell: My Lords, what were the national security considerations that made possible a full competitive tendering process in the United States hut not in this country?
Lord Hunt of Kings Heath: My Lords, what the US Government decide to do is a matter for themselves.
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This Government decided that these were important issues of national security. That is why we took the decision that we did. The procedure undertaken was checked and cleared by the Permanent Secretary to the Department of Health. I am wholly satisfied that everything was in order.
Lord Mackie of Benshie: My Lords—
Lord Marlesford: My Lords—
Lord Williams of Mostyn: My Lords, noble Lords cannot ask more than one question.
Lord Marlesford: My Lords, does the Minister remember signing a Written Answer to me on 11th March? I asked what plans the Government had to increase the quantity of anti-smallpox vaccine held in the United Kingdom. His answer was that,
"the United Kingdom policy on future smallpox vaccine manufacturing is currently under review".—[Official Report, 11/ 3/02; col. WA 56.]
When he signed that Answer, was he personally aware that a contract had been, or was about to be, placed? If so, does he regard that Answer as being frank with Parliament?
Lord Hunt of Kings Heath: Yes, my Lords. My understanding is that work was undertaken by the department over a considerable period of time to enable a decision to be made. A decision was made and signed off on 11th March. It is our intention and policy to ensure that we are as open as possible within the constraints of national security.
Baroness Northover: My Lords, one of the Government's arguments was that they needed to operate with speed and conclude the matter now. Does the Minister accept that the US was able to put the contract out to competitive tender and to conclude it within six weeks? Does he further accept the point made by Professor Oxford of Bart's and the Royal London that there is no medical reason to opt for the vaccine strain chosen by the UK Government rather than the one more readily available and chosen by the US Government? Following Ecclestone et al, does not the Minister wish that his department had put the matter out to competitive tender so that the Government could have avoided the claims of cronyism which have surrounded this controversy?
Lord Hunt of Kings Heath: No, my Lords. The Government have acted quite properly throughout this process. As to the question of which strain should be used, the decision was taken to go for a particular strain in this country for two reasons. A two-pronged approach was thought advisable. With the US using a different strain, if difficulties arose with the production of either strain the other could act as a joint fall-back mechanism. The Joint Committee on Vaccination and Immunisation endorsed the view that there was no reason to opt for the strain chosen by the US as opposed to the strain chosen by the UK

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Government. There is also strong epidemiological evidence of efficacy in that smallpox has been challenged in the field more often with the strain chosen by the UK Government, and there is more documentation to support its use.
Earl Howe: My Lords, will the Minister answer the Question posed by my noble friend Lady Noakes? Was the Prime Minister correct to say yesterday in another place that,
"many companies were asked to tender"—[Official Report, Commons, 17/4/02: col. 567.]?
Was the Prime Minister's official spokesman correct to state to journalists on 17th April that there was a tendering process?
Lord Hunt of Kings Heath: My Lords, the department consulted widely with industry about its capacity and ability to deliver supplies quickly in a way that met our requirements to increase national supplies of vaccine. My understanding is that five companies were approached to see whether they could meet the specifications. It is very clear indeed that a number of companies were given the opportunity to put forward their case for being chosen. I have stated that the Permanent Secretary in the Department of Health was asked to give advice as to whether the proper procedure had been adopted. His advice was that it had.

Chemical Weapons
3.31 p.m.
Lord Rea: My Lords, I beg leave to ask a Question of which I have given private notice, namely:
What Her Majesty's Government's position will be at the special meeting of the Organisation for the Prohibition of Chemical Weapons to be held at The Hague on 21st April, when it is anticipated that the United States will seek to unseat its long-standing—and highly effective—director-general, Sr Jose Bustani.
Baroness Symons of Vernham Dean: My Lords, I can confirm that a special conference of states parties to the chemical weapons convention will convene in The Hague on 21st April 2002 at the request of the United States to consider the appointment of the director-general of the Organisation for the Prohibition of Chemical Weapons. Her Majesty's Government are still finalising their position. However, your Lordships should know that, at the meeting of the executive council of the Organisation for the Prohibition of Chemical Weapons on 22nd March, the United Kingdom supported a vote of no confidence in the director-general.
Lord Rea: My Lords, I thank my noble friend for that Answer. However, does she agree that the real American objection to Sr Bustani is not to his failings, but to his very success? For example, he has increased the number of signatories to the chemical weapons
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convention from 87 to 140 in the past five years. Such is his success and his reputation for impartiality—quite apart from asking searching questions about the United States' own chemical weapons—that it is thought that he might be able to persuade Iraq to join and to adhere to the chemical weapons convention, rather than to allow the return of UNMOVIC, which Iraq considers to be US dominated. If that were the case, would it not remove a major pretext for US military intervention in Iraq, which appears to be the policy of the hawks in the United States Administration?
Baroness Symons of Vernham Dean: My Lords, I am afraid that I cannot agree with a great deal of my noble friend's conjecture. The director-general did indeed have some successes in the work that he undertook during his first period of office in establishing the OPCW and in establishing a world-wide verification regime. But, sadly, the organisation encountered financial difficulties early in 2001, for which the director-general must take a measure of responsibility. I cannot agree with the supposition that his period of office has been one of great success when those financial problems led, last year, to his not being able to maintain the appropriate level of inspections worldwide of military and commercial sites. As I understand it, towards the end of last year, the number of inspections fell by almost 50 per cent of the normal annual schedule. We made representations to the director-general on several occasions last year about our concerns at the decline in verification activity. I believe that that is what lies at the heart of the current difficulty.
Lord Avebury: My Lords, is the Minister aware that it is grossly unfair to serve these accusations in public on the director-general, when he has been given no formal opportunity to rebut them, either in the conference of states parties or in the executive council? Is it not contrary to natural justice that he should be charged in this public manner without being given an adequate opportunity to rebut the charges? Does the Minister agree that, if the US is allowed to intimidate and coerce other states, as it has done, into dismissing an international civil servant, it will undermine the independence of all international institutions? Do not the Government see a pattern developing with the attempts by the US Administration, not only against the director-general of the OPCW but also to undermine Mr Hans Blix, the head of UNMOVIC? Does the Minister further agree that, if this procedure continues, no international institution will be able to claim full independence?
Baroness Symons of Vernham Dean: My Lords. I hope that the noble Lord is not bracketing me in what he describes as unfairness. When I am asked a Question in this House, I must give the Answer that I believe is accurate and which accurately reflects the position of Her Majesty's Government.
I indicated to the House that the Government are still finalising their position. The reason is that the Secretary of State has not come to a final decision.

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However. I felt it right in the circumstances to indicate to your Lordships how we had voted at the executive council. To have done anything else would have been misleading. I felt it right to give your Lordships some of the reasons for doing so, as I was asked to do. Her Majesty's Government were not alone with the United States in reaching that decision on a vote of no confidence during the executive meeting in March. Seventeen countries out of the 40 represented voted for a motion of no confidence; 18 abstained; and five opposed the motion of no confidence. That is a fairly telling list of votes.
Lord Richard: My Lords, is my noble friend aware that it would perhaps be more profitable for the House to consider the British reasons for not accepting this gentleman and for voting for a motion of no confidence in him, rather than over-speculating as to the motivation of the United States in this matter? Will my noble friend reiterate and clarify the reasons why the British Government could not support him?
Baroness Symons of Vernham Dean: My Lords, as I indicated, the organisation encountered some financial difficulties early last year. As I understand it from the briefings that I have received, those difficulties were rooted in structural problems within the organisation and in the fact that some states parties had not paid their contributions on time; and there was a degree of mismanagement in the organisation. We and other states parties wanted to get to the bottom of the problem. As I have indicated, we were concerned about the verification procedures and about maintaining the level of verification, both military and commercial. We asked the director-general to cooperate with an effort to get to the bottom of the problems, and I understand that he did not co-operate in the way that we would have expected.
Baroness Williams of Crosby: My Lords, will the Minister confirm that both the United Kingdom Government and the United States Government made their contributions to the organisation on time?
Baroness Symons of Vernham Dean: My Lords, I shall have to check on that point. The United Kingdom Government have a very good record in these matters, and I shall check on the further matter.
Lord Bruce of Donington: My Lords, it is often the custom in this House for reference to be made to briefings. Will the noble Baroness give the House an assurance that members of the Government do not invariably rely on briefings, but on what they themselves think?
Baroness Symons of Vernham Dean: My Lords, I hate to disabuse the noble Lord, but I will be frank with him and tell him that I was not aware of the difficulty until I saw the Private Notice Question of the noble Lord, Lord Rea. I would not expect to be aware of the difficulty because it does not lie within my specific area of responsibility. However, my right
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honourable friend the Secretary of Slate is aware, as is my honourable friend Mr Bradshaw. They have frontline responsibilities for the matters, but I argue for them in your Lordships' House. I would not wish any noble Lord to be under any illusion at all: I have relied on official briefings in giving my answer to your Lordships.
Lord Rea: My Lords, my noble friend spoke of the organisation's financial difficulty in fulfilling its inspection tasks. Is she aware that the United States put a cap on its funding, but was then one of the nations that failed to pay its dues?
Baroness Symons of Vernham Dean: No, my Lords, I was not aware of the United States' position in that respect; nor am I aware of the funding coming forward from any other individual country. However, I can say that the United States, Japan, Germany, Italy. France and the United Kingdom together provide 70 per cent of the organisation's funding. I have not been able to answer in detail the question put by the noble Baroness, Lady Williams, or that put by my noble friend. I shall, if I may, take away those points, write to the noble Baroness and my noble friend, and place a copy of the answer in the Library of the House.

NHS Plan
3.41 p.m.
Lord Hunt of Kings Heath: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State. The Statement is as follows:
"Mr Speaker, with permission, I wish to make a Statement on the next steps on reform and investment in health and social services. I am today laying before Parliament a Command Paper setting out these next steps, copies of which have been placed in the Vote Office.
"The NHS Plan we published in July 2000 set out a 10-year programme to rebuild and renew the health service in our country. It diagnosed the NHS problem in this way: the principles of the NHS are right—on this side of the House we believe in in NHS free at the point of use, funded from general taxation, based on need not ability to pay. But the NHS today is the product of decades of under-investment. It is also the product of a failure to reform. Staff—the greatest asset that the health service has—work flat out in a system which still too much resembles the 1940s.
"The NHS Plan set out a 10-year programme of investment and reform: clear national standards, more devolution of resources, greater flexibility for staff and more choice for patients. With the economy stabilised and the public finances sorted out, the 2000 spending review was able to give the NHS the largest-ever real-terms increases in resources.

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"Two years later, anyone who says there are no problems in the NHS have clearly got it wrong, but those who say there is no progress have also got it wrong. Yes, there is a long way to go; it is a 10-year plan. But those who point to an NHS black hole should in fact be pointing to dozens more hospitals, hundreds more beds, thousands more doctors, tens of thousands more nurses, and a better health service as a result.
"In July 2000, we acknowledged that three years' sustained funding was not enough. My right honourable friend the Prime Minister had already said in January 2000 that we needed to match EU levels of spending. Yesterday, my right honourable friend the Chancellor of the Exchequer put NHS finances on a sustainable footing, not for three years but for five. Years of failure in the past to invest are now being replaced with years of investment for the future.
"Today, I can tell the House what this investment will give us: 35,000 more nurses, 15,000 more doctors, 40 new hospitals, 500 primary care centres. As investment grows, so the capacity of the NHS will grow.
"Investment in the NHS must be accompanied by changes in the way the NHS works. Ours is not an unconditional offer. Without the reforms we will not get the best use of the money for the taxpayer and we will not get the improvements in service for the patient. Where we have had the courage to invest, we must now have the courage to reform. Our formula is simple: investment plus reform equals results.
"So, first, building on the national standards already in the NHS Plan, I can tell the House today that we will strengthen the system of inspection and audit to improve accountability to patients and the public. Where more resources are going in, people have the right to know what they are getting out. We will establish a new commission for healthcare audit and inspection to inspect and raise standards in healthcare across our country. But we are clear: we need higher standards in NHS hospitals, and there must be higher standards in private hospitals, too. The commission will assess the performance of every part of the NHS so that the public will see that every extra pound in the NHS buys something better for patients, gets something more for taxpayers.
"Similar arrangements will be made for social care. We will discuss the details of both with the National Assembly for Wales.
"The new commission will be independent both of the NHS and of Government and will be more independent than the current fragmented system. It will report annually to Parliament, not to Ministers, on the state of the NHS, the performance of the NHS, and the use to which NHS resources have been put. The Government should not be judge and jury on the NHS. The commission will be the judge, the British people the jury.
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"Secondly, we can now go further in extending devolution in the NHS, building on what has been achieved to date. The health service should not and cannot be run from Whitehall. The NHS is delivered in hundreds of different communities by over I million staff. The relationships are between the local patient and the local doctor, and the local community and the local hospital. But these relationships will not work properly until central control is replaced by local accountability. After 50 years, the time has come when the sound of bedpans being dropped in Tredegar should only reverberate in Tredegar.
"With national standards and inspection in place, power, resources and responsibilities now must move to the NHS frontline. When we came to office, GPs controlled just 15 per cent of the total NHS budget. Today, primary care trusts—with GPs and nurses in the lead—already control half of the budget. Within just two years, they will control three-quarters. Just as the new commission will report nationally, so PCTs will need to report locally on how NHS resources have been spent.
"The best primary care trusts, just like the best NHS hospitals, should enjoy greater freedoms and more rewards. We will establish new foundation hospitals and foundation primary care trusts—fully part of the NHS, but with more freedoms than they have now. They will have more powers, including a right to borrow, to expand their services for patients.
"Thirdly, further to the new powers we have given to nurses and others, we will radically alter the way staff work and introduce a new system of financial incentives across the whole health service. We will put in place new contracts of employment—not just for nurses and other staff, but for GPs and, yes, for hospital consultants too. Our objective is to liberate the potential of all members of staff, reward those most who do most in the NHS, and, crucially, to improve productivity across the whole health service.
"New incentives for individual members of staff will be matched with a new system of financial incentives on NHS organisations. The hospitals that can treat more patients will earn more money. Traditional incentives work in the opposite direction. Indeed, it is often the poorest performers who get the most financial help.
"We will therefore introduce a new system for money to flow around the health service, ending perverse incentives, paying hospitals by results. The incentive will be to treat more NHS patients more quickly and to higher standards.
"Fourthly, patient choice will drive this system. Starting with those with the most serious clinical conditions, patients will have a greater choice over when they are treated and where they are treated. From this summer, patients who have been waiting six months for a heart operation will be able to choose a hospital—whether it is public or private—which has capacity to offer quicker treatment.

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"This level of investment means that we can grow NHS capacity as fast as it is possible. I can also say today that it is our intention to draw into this country additional overseas capacity so that we can further expand NHS services to NHS patients.
"As capacity expands, so choice can grow. Within three years, all patients, with their GPs, will be able to hook hospital appointments at a time and a place that is convenient to themselves. The reforms we are making will mark an irreversible shift from the 1940s take-it-or-leave-it, top down service. Hospitals will no longer choose patients; patients will choose hospitals.
"Reductions in waiting times to get into hospital must be matched by cuts in waiting times to get out. Older people are the generation who built the NHS and who have supported it all their lives. This generation owes to that generation a guarantee of dignity and security in old age. Bed blocking denies both.
"In recent months the extra resources we have made have reduced the number of elderly patients whose discharge from hospital has been delayed. I am grateful for the help local councils have given us in addressing this problem. But here the long-term solution is not just investment; it is reform.
"So I can tell the House today that in order to bridge the gap between health and social care we intend, as they have done in Sweden and elsewhere, to legislate to give local councils responsibility from their 6 per cent extra real terms resources for the costs of beds needlessly blocked in hospitals. Councils will need to use these resources to ensure that older people are able to leave hospital when their treatment is completed.
"If councils reduce the current level of bed blocking so that older people are able to leave hospital safely when they are well, they will have freedom to use these resources to invest in extra services. If bed blocking goes up, councils will incur the costs of keeping older people in hospital unnecessarily. There will be similar incentives to prevent hospitals seeking to discharge patients prematurely. In this way we will provide local councils with the investment and the incentives to improve care for older people.
"Taken together the NHS Plan and the next steps announced today amount to the most radical and fundamental reform programme inside the NHS since 1948. I want to pay tribute to the staff in the NHS, not just the nurses, doctors and consultants, but all the staff—the different medical disciplines, the ancillary staff, the secretaries, receptionists, porters and cleaners. They represent the very best of British public service and I believe that as a nation and as a Parliament we should be proud of the work they do. I know and understand the enormous pressure they are under as the NHS makes these changes. But I know, too, that they share this basic goal: to rebuild the NHS around the needs of its patients.
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"This programme of investment and reform will mean each year, every year, waiting times will fall. Last year the maximum wait for a hospital operation was 18 months. Today it is 15 months. By this time next year it will fall to 12 months. By 2005 it will be six months. And by 2008 it will have been reduced to three months. By then the average waiting time for a hospital operation will he just six weeks. No longer will people have to face the dilemma of having to wait for treatment or having to pay for treatment.
"As a party and a government we are committed to providing opportunities to all in our society and not just some. So there will be more effort to prevent ill health as well as treating it—25,000 lives a year saved by the investment we cart now make in preventing and treating heart disease alone.
"The balance of services will shift with more patients seen in primary and community settings, not just in hospitals. Social services will have resources to extend by one-third rehabilitation care for older people. Councils will be able to increase fees to stabilise the care home market and secure more care home beds. And more investment will mean more old people with the choice of care in their own homes rather than simply in care homes. Yesterday's Budget and today's NHIS reforms mean that the NHS Plan will be delivered.
"I want to make two further points, however. Ii is a 10-year plan, as we said in July 2000. By the time of the next election, there will be real and significant improvements. But this cannot happen overnight. It takes seven years at least to train a doctor and up to 15 years to train a consultant. Expectations will be high but they also need to be reasonable and people need to understand that a 10-year plan is exactly what it says: a plan that will take time to be delivered in full. But at least now public and patients will be able to see improvements made stage by stage and independently of government, audited, monitored and inspected.
"Secondly, on one thing there is a consensus. Britain needs to spend more on healthcare. There is no mystery why in Germany there are not waiting lists. They have spent more and have done so for years.
"We can debate endlessly the systems of finance. But one thing is beyond debate: the level of finance had to be raised. And once that is accepted, the choice is not between a system funded out of general taxation, that results in higher national insurance, and some other system that comes for free. Importing the German system of social insurance would cost the equivalent of an extra £1,000 per worker per year, the French system £1,500 per worker per year.
"We on this side of the House believe in the NHS in our heads as well as our hearts. We believe it to be the best and fairest system of providling true health insurance because it is based on the scale of the person's need not the size of their wallet. It is the best insurance policy in the world.

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"It is now for those who want to see the NHS not reformed but abandoned, who routinely call it Stalinist, to say honestly what their alternative is, what it would cost and how families and pensioners would pay for it.
"Yesterday we made a choice and we ask the British people to make the same choice. We are proud of our NHS and the people working in it. We are giving it the money it deserves. We are making the changes it needs. Investment plus reform equals results. We will be happy to be judged upon them".
My Lords, that concludes the Statement.
3.56 p.m.
Earl Howe: My Lords, the House will be grateful to the Minister for repeating the Statement, which is self-evidently of great significance for the NHS as well as for taxpayers.
The full implications of this announcement will emerge only over the next few days and weeks. The Statement is long on generalised aspirations and rather short on detail. However, several things are clear. The Government have embarked on a route which is make or break. Not only have they shut off any debate about moving away from a monopoly funding stream for healthcare, and thus distanced the UK from almost every other developed country, they have also staked everything on substantial tax increases, which they told us at the election they would not impose. The macro-economic effects of these plans are perhaps a matter for another occasion, although they are already exciting concern from respected economic commentators.
The health effects, on the other hand—the health gains, the improvements in services, the improvements in productivity—are the things on which the Government will eventually be judged. If they are not to be perceived as pouring ever increasing amounts of money into a black hole, then it is necessary for them to show that the reforms to the system, which the Statement makes so much of, really have created the kind of health service that is capable of deploying the new money efficiently and effectively for patients.
On the real extent of these much trumpeted reforms, I entertain considerable doubts. One of the most striking passages in the Statement was that relating to greater freedoms being conferred at the NHS front line. The Minister spoke of foundation hospitals and foundation PCTs. Can he say what exactly these organisations will be? What legal form will they have? Who will appoint their board members? What constraints and what freedoms will they operate under? I am all for greater autonomy, but what will it actually amount to and how many NHS bodies will benefit?
The power of foundation trusts to borrow was mentioned. Can the Minister say whether this means that they will be able to borrow from the market? Will there be a Treasury guarantee for such borrowings and what will be their effect on the PSBR? Borrowing necessarily implies repayment. How will such
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repayment be provided for? Will borrowing just be a way of anticipating future cash allocations, thus storing up difficulties for later years? When will we have full details of what is proposed?
The White Paper speaks about financial incentives and penalties. I found that section pretty baffling, but one of its features is apparently to be that if a trust fails to deliver its targets, money will be taken away from it. How will this work? How will it be possible to avoid a situation where money that is taken away gives rise to cuts in capacity, which in turn lead to a downward spiral of delivery against objectives?
The Statement referred to a new system for money to flow around the health service. Will the Minister say what is meant by that, if it is not what we have long advocated and what the Government abolished when they came to office; namely, money following the patient? How exactly will that be achieved?
To deliver reform on the appropriate scale will require investment in IT. The Government admit that they have not spent enough on IT to date and in particular that there has been inadequate progress in delivering electronic patient records, which is one of the key building blocks for an efficient, patient-centred service. If there is to be greater devolution within the health service, how will the Government ensure that the right IT systems are commissioned?
I turn briefly to accountability and audit. The Statement referred to the independence to be conferred on the new commission for healthcare audit and inspection. Will the Minister say who will set the budget for the commission and from where its funding will be drawn?
Finally, I turn to the shortage of beds. It seems extraordinary that a Government who have been willing to countenance—not to say engineer—a drastic downsizing of the care home sector should now be seeking to shift the blame, and the burden, for bed blocking on to local authorities. Can the Minister confirm that the Government intend to make council tax payers foot the bill for bed-blocking problems? How can that be a fair deal when, as we know from some parts of the country, there is a drastic shortage of care home beds—a shortage that was brought about quite deliberately by the Government's policies?
It is perhaps a cause for some small comfort that the Government recognise that money alone cannot deliver the improvements in healthcare that we all wish. That also requires reform. The test for them is to turn their rhetoric on reform into reality. I for one profoundly doubt whether the scale of the reform will be anything like sufficient to ensure that the substantial new sums that are earmarked for healthcare will add commensurate value to the NHS and the patients whom it serves.
4.2 p.m.
Lord Clement-Jones: My Lords, I, too, thank the Minister for repeating the Statement that was made in another place.

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We on these Benches welcome the references in the Chancellor's Budget yesterday on health funding and some—I stress that word—of the Secretary of State's Statement. I believe that that extra funding represents a victory for patients and "game, set and match" in terms of the arguments that the Liberal Democrats have been making, in some cases since the 1997 general election.
First, we on these Benches welcome the announcement of more resources for healthcare and believe that it should be funded from general taxation in a transparent and accountable manner. We have been making that argument for a considerable period. We believe that that represents the fairest form of social health insurance. That is in stark contrast to the position of those on the Tory Benches. We believe that Mr Wanless has actually got it right.
Secondly, I stress the need for social care funding to keep pace with NHS funding, which will ensure that hospital beds are freed up and that older people in particular can be cared for properly in the community. Whether the figure is 19,000 or 30,000 beds, the fact is that there has been a drastic reduction over the past three years. It is good that the Government have finally recognised that fact and that local authorities will now have the ability to fund domiciliary and residential care. In addition to that great change of heart by the Government, I hope that they will examine very carefully the arguments for providing free long-term personal care. They have already come quite a way in our direction; it takes just a little extra to come even closer.
Thirdly, I stress the need for the independent audit of standards and the need to establish whether money has been reaching the areas for which it was allocated. I referred to that in my last Starred Question. Throughout the passage of the National Health Service Reform and Health Care Professions Bill we have argued strongly for an independent audit body. It is good to see the Secretary of State and the Chancellor taking note of debates in this House. I trust that the Select Committee to which the audit body will be accountable will follow very closely the proposals that we made from these Benches and which were supported by those on the Conservative Benches. Whoever said that arguments in politics do not have happy outcomes?
Many matters, however, need to be clarified. What is the timing for putting the initiatives into practice? The NHS, as I have pointed out on many occasions, is groaning under the weight of new initiatives. We have beacon hospitals and earned autonomy, and now we have foundation hospitals. So it has gone on in many different areas.
We argued at the outset—at Second Reading of the National Health Service Reform and Health Care Professions Bill—that that Bill should be delayed. We did so in our very confident belief that those reforms were half baked and would rapidly be superseded. So it has proved to be. The Bill has already been superseded by the Secretary of State's Statement. Will the Minister arrange for the Bill to be delayed so that
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the new audit body, which we welcome—it appears that it will be a combination of a number of different audit bodies—can be included? Or is he planning to table amendments on Report next week? That would involve a fairly superhuman effort. That demonstrates the way in which the Department of Health and the Secretary of State in particular currently operate. We get initiative piled on initiative and legislation piled on legislation. When will it ever end?
When will the merger with CHI take place? The National Care Standards Commission is barely up and running—I refer to the acute hospital inspection side—but it will be merged with CHI. When will CHI be merged with the new body? Even if the body is not going to be merged, there are already 21 mechanisms in the health service for clinical governance. We should be thankful for small mercies and pleased that we do not have a 22nd mechanism. There is a plan for some simplification of the system for clinical governance.
Much time has been lost—five years to be precise—on the argument for funding the health service transparently from general taxation. The Government are no longer dissembling in that respect. We need to ensure that professionals and managers are allowed to get on with the job in the health service. Will the Government now desist from setting any more targets? Those that we have are ambitious enough, despite the Government's spin, the reports of chief executives and so on. Will the Government now ensure that money that is allocated to the health service gets to the intended services? Apart from through the Audit Commission, how will that be done?
Finally, I pay tribute to the NHS as a body and to NHS staff. I know that they will welcome the Chancellor's additional funding. However, they will have extreme reservations about the Secretary of State's Maoist approach to management. That approach involves hyperactively changing every initiative before it has had a chance to take effect. I hope that, in implementing these initiatives, the Secretary of State will take all of that into account.
4.8 p.m.
Lord Hunt of Kings Heath: My Lords, I thank the noble Earl, Lord Howe, for what I believe was a welcome to at least the announced allocation Df resources to the NHS in future. Sadly, he did not say whether the Conservative Party would make a similar commitment of resources to the NHS. I agree with him that there is much detail in the proposal to be debated. We look forward to hearing more about his party's intentions.
The noble Earl's first substantive point was whether the current system of funding the NHS was the right one. I am delighted that my right honourable friend the Chancellor of the Exchequer made it abundant y clear that we believe that the current system of funding is indeed the right one, provided that that is accompanied by the reforms that are contained in the Statement. The Budget and the review documents that were published yesterday contain detailed information on alternative systems of funding. For instance, on

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funding by private insurance in the United States, those documents show that premiums average around £100 a week and are set to rise by £13 a week on average next year. As a result of those costs, that system insures only some of the people for some of their care.
Those documents also show that, on social insurance, the narrower base for contributions in France means that a typical employer pays £60 a week. That can place many costs on employers, it can have an impact on the economy and it affects employers' ability to create new jobs.
The report also shows that charging for clinical services, which would involve a healthcare system based on medical charges whereby patients would pay rising bills for individual operations and treatments, would mean, in effect, that the sick would pay more for being sick. It is the Government's view not only that the NHS system of funding is the most equitable, but that by offering the most comprehensive insurance policy to meet rising costs from medical advances, a reformed NHS can give people the greater security that they need.
I agree with the noble Earl about the crucial nature of this announcement and the future facing the NHS. There is no question but that this is a make-or-break situation for the National Health Service. It must show that it can change and reform and meet the expectations of the public with the resources that will now be made available.
The noble Earl asked about productivity. That is why we are introducing more freedoms into the system. We are introducing the right kind of financial incentives to make people behave in a way that will deliver the type of reform programme that I have described.
The noble Earl also asked for specific details about foundation trusts. I believe he will understand that I am not in a position to give precise answers because we still have to work through many of the details. However, I am convinced that if we are to have ownership of decision-making at local level, if we are to energise people and ensure good leadership in those who run the trusts, and if we are to get more people involved locally in what they do and support what they do, it is right to create foundation trusts.
It is extremely significant that the discussions that we have had with the chief executives of our most successful trusts indicate that they are very enthusiastic about the kind of freedoms that can be given when we create foundation trusts. In my view, an important potential of foundation trusts is that they are seen far less as agents of central government and far more as locally owned organisations which owe their accountability to the people whom they are there to serve.
The noble Earl asked me about financial incentives. At present, successful NHS trusts can exceed the activity that had been agreed with commissioners. However, in essence, there is no resource to pay them to do the extra work. It must make sense to incentivise
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the health service in order to ensure that those who can do more receive the rewards for doing so. Of course, it must be done in such a way that perverse incentives do not arise, and it must be done in relation to effective referral protocols. But surely the emphasis should be placed on rewarding those who do well rather than providing excuses for NHS organisations which do not.
As someone who has spent his career in the health service, the one point that I would make is that there is a great deal of difference between different organisations. We must not approach the NHS from the point of view that all organisations must be treated in the same way and that all are as good as each other. The work of the Commission for Health Improvement readily identifies enormous differences in the quality of work that is being done.
There is no doubt that the health service has invested inadequately in IT. I very much hope that the package announced yesterday by my right honourable friend the Chancellor will enable the proper investment to put into IT. I believe that, while the thrust of what we are saying today concerns devolution, IT is one area where there needs to be central leadership. We shall give that leadership. We shall also ensure that organisations are aided through advice and support to enable them to make the best of their IT. I consider IT to be fundamental to the reform process.
With regard to inspectorates, I am not in a position to respond to the noble Earl in relation to resources. Of course, we need to work fully through the details, but I assure the noble Earl that we shall resource the new inspectorates adequately because we want them to do a very good job. He will also have noted that we intend them to be more independent. I believe that noble Lords who have debated this issue in the National Health Service Reform and Health Care Professions Bill will welcome that very much.
If I may say so, the noble Lord, Lord Clement-Jones, started in a very constructive mode. I believe that he claimed that the announcement was all due to Liberal Democrat policy. I certainly welcome his support for the general funding of the NHS. I believe that we have done rather better than the penny on income tax proposed by his party. I also welcome the comments that he made about social care funding. If there is one thing that we have learnt, it is the importance of integration between decisions in health and social care. Clearly, if we are to deal with the issue of delayed discharges, we must have an integrated approach. I do not agree with him about personal care. I passionately believe that the money is better spent on intermediate care. That is where we shall spend that money.
The noble Lord, Lord Clement-Jones, echoed the theme that the noble Earl. Lord Howe, often raises; that is, that the Government are guilty of weighing down the NHS with too many initiatives. In the planning priorities guidance for next year, we have recognised the need to focus the NHS on the issues that really matter. The Statement which I have repeated today focuses on the issues of waiting and choice—

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matters which are very important to the public. The new initiatives that we have announced—the financial incentives and the freedoms for trusts—are all designed to focus the NHS and to move away from a system where too many priorities are involved.
However, in many debates—and, indeed, today—when the noble Lord talks about ensuring that money is directed to the services which are important, he is as guilty as anyone of seeking to micro-manage the health service from the centre. We resist that temptation. We wish to give much greater flexibility at local level. Of course, it is important to ensure that services such as those for cancer are funded adequately at local level. It will be the role of strategic health authorities to performance-manage that. However, I consider it to be most important that we give as much freedom as possible at local level.
Finally, the noble Lord asked about the progress of the current National Health Service Reform and Health Care Professions Bill. We are extremely satisfied with the Bill as currently drafted. We consider it to be important and we shall certainly proceed with it. We look forward to its Report stage in a few days' time. Of course, some of the measures that we have announced today will require primary legislation, but the noble Lord knows that I cannot possibly comment on when that might come before your Lordships' House.
4.18 p.m.
Baroness Pitkeathley: My Lords, during my five years in your Lordships' House there have been few Statements that I have welcomed as wholeheartedly as I do this one. Indeed, it has already raised morale. I know that because this morning I spoke to some of the dedicated staff to whom I and many others owe our lives. I particularly welcome the increased incentive to bring about co-operation between health and social services. I believe that the phrase "bed blocking" is unfortunate, and I am glad that my noble friend used the term "delayed discharge" instead.
However, I want to ask my noble friend whether he agrees that, when it comes to promoting co-operation between health and social services, carrots are better than sticks. Can he give me an assurance that any penalising of either health or social services will be kept to a minimum? Further, can I ask him for an assurance that encouragement will be given to build on the excellent work and relationships established by the National Care Standards Commission and an assurance that it will not replaced by the new commission?
Lord Hunt of Kings Heath: My Lords, I agree with my noble friend that the announcement in yesterday's Budget and our intent today will bring great joy in the National Health Service. Not only are extra resources being provided, but stability over a five-year period, which is important.
I also agree that the term "delayed discharge" is probably a better one to use, although I detect from the Liberal Democrat Benches that even that term does
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not appeal to all Members of your Lordships' House. We all know why we need to tackle the issues with gusto. We know of the problems that there have been despite the generally good work undertaken by health and local authorities. There have been capacity problems in terms of getting people out of hospital, but intermediate care is one way in which that is being tackled.
At the end of the day, an incentive system, which is based on schemes in Denmark and Sweden, is the right way to go. I believe that the 6 per cent extra resources per year in real terms for social service authorities over a three-year period, plus "incentivisation", is the best way forward. I agree with the noble Baroness that it is better to use a carrot than a stick. Some sticks are needed and the financial incentives will work in the sense that the more enthusiastic local authorities are and the greater their ability to hasten the appropriate discharge of patients from hospitals, the more resources they will have for other services. The less local authorities are able to do that, the fewer resources they will have. I believe that that is the right kind of incentive.
In relation to care homes, we have all looked with concern at the viability of some of them. I believe, and it is our expectation, that the resources that we are now making available to the social service authorities will enable, where appropriate, an increase in fees to care homes to take place.
Lord Roberts of Conwy: My Lords, perhaps I may press the Minister a little harder on the issue of where the present National Health Service Reform and Health Care Professions Bill stands. In light of the White Paper, to what extent will that Bill and its provisions become redundant? The Minister sounded somewhat complacent about the timing of the legislation to come. Nevertheless, I am sure that he will be aware, as I am, that promises have been made to improve the NHS by the time of the next election. Four years is not a great deal of time when primary legislation is required.
The Minister referred to the training of doctors and consultants. Will he say a little more about the Government's plans? Perhaps I should declare an interest as president of the University of Wales College of Medicine. We are anxious to know the Government's plans. Did I understand the Minister to mean that some of the money allocated to the health service could be put directly into social care?
Lord Hunt of Kings Heath: My Lords, on the final point about social care, the funding of social service arrangements to help the discharge of patients will go down the normal route of allocation to local authorities. On the other hand, we have arrangements for the pooling of resources. There is a partnership between the health service, local authorities and care trusts. We are keen to see integrated services. There will be different pools of money, but the specific "incentivisation" of local authorities to improve arrangements for patients when they are discharged will come through the normal local authority allocation route.

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In that respect, under the arrangements that are agreed between health authorities and local authorities at a local level, if health services were actually responsible for the problems in terms of discharge, they would face the financial penalty. I want to make it clear that there is no suggestion of simply targeting local authorities and saying that they are the ones to blame and no one else. We want a partnership approach.
On the Bill, I am not complacent, but I was given due warning by the Chief Whip, who reminded me that at this stage I cannot say at what point legislation could be introduced to take forward some of the proposals. What is clear from the Statement is that further primary legislation will be required. I regard the current NHS Bill as a stepping-stone. It contains important measures in relation to patient and public involvement in the health services in Wales, as the noble Lord knows, primary care trusts, strategic health authorities and regulation of the professions. We are anxious to see that enacted.
On the training of doctors, the noble Lord will know that we have seen a considerable increase in the intake of medical schools in the past few years. By the autumn of this year, for example, we estimate that that intake will be 1,250 a year more than in 1997 and that it will increase to 1,950 by 2003. Clearly, as the Statement mentioned, it takes a long time to train a doctor, and even longer for a doctor to become a consultant. That is one of the great inhibitions in expanding the capacity and it is one of the reasons why we look to nurses and to other professions to take on more responsibility. We are making progress and the new contracts that we are negotiating with the leaders of the doctors' profession will also enable us to meet some of the current shortfalls.
Baroness Howarth of Breckland: My Lords, as someone who has worked in a local authority and a health authority area for many years, I welcome the announcement. I have a question about the timescale. The Minister said that it was not possible to give the House the timescale, which I understand. However, can he tell the House how we are to keep the morale of staff in those services at top notch with the degree of uncertainty that they experience?
I declare an interest as a member of the board and vice-chair of the National Care Standards Commission. That commission has been operating for three weeks and we have just re-organised hundreds of staff into 70 offices. The Minister will know that we do not yet have all the standards in place. While I believe that there is a need for further re-organisation and inspection, timing is crucially important. It is also important for the staff to understand where they stand in relation to their jobs. Managing that is critically important.
The management of change requires sensitivity as it is a delicate task. As the noble Lord, Lord Clement-Jones, said, we have had huge change. It will affect the delivery of service and the productivity that people can
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deliver. Often their efforts are redirected into the issues of change rather than into primary care. The National Care Standards Commission inspects the institutions that care for the most vulnerable people in our community. Can the Minister tell the House whether the Government are considering issuing messages, in some detail, to staff about what this change will mean to them? It is no use having general reassurances about how wonderful they are—we all think they are absolutely wonderful. They need to know what will happen to them tomorrow.
A second point is whether the Minister will consider other IT programmes before developing the health service's new IT programme. I say that from my experience of at least three government IT programmes, which frankly, when they were accepted by the people for whom they were commissioned, were near disasters. We should at least get that right in the next round.
Lord Hunt of Kings Heath: My Lords, in relation to IT we need to learn the lessons of past efforts in central government. Looking back over quite a long time, the NHS has had a number of IT initiatives that have ended in failure. One reason why the NHS moved away from central direction was because of the failure of some central IT projects in years gone by. We need to get the balance right and to have greater central direction. We need to give a good deal of help to local people to work within a system that enables the NHS as a whole to work together and to work across organisational boundaries. Certainly we are seeking advice from across government and the private sector on IT matters. I very much take on board the points raised by the noble Baroness. While we are disappointed with progress in some areas of IT, there have been some significant achievements on which we need to build.
I pay tribute to the staff of the National Care Standards Commission, the Commission for Health Improvement, and indeed, the Audit Commission, as it is important to place on record my gratitude for the outstanding work that has been undertaken. In the case of the Audit Commission, it is universally agreed that the value-for-money studies have been outstanding. We are anxious to ensure that the quality in the new inspectorate is kept to the same high order. I pay particular tribute to the Commission for Health Improvement because, from a standing start, it has undertaken a huge number of reviews. The staff of the National Care Standards Commission have also had to start from a blank sheet of paper in double-quick time.
We want to meet the current organisations very soon to discuss the practicalities of where we are going. In the meantime, we wish to encourage them to carry on the good work, and to work together because many of the changes that we are making can start by organisations collaborating. I know that they already do so very effectively. It is worth remembering that the staff of the current organisations will form the broad bulk of those who will go into the new organisation.

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We need to talk through the details, but I am anxious to ensure that the people currently in those organisations feel supported and valued.
There has been a clear recommendation from Kennedy. Noble Lords in our debates on the National Health Service Reform and Health Care Professions Bill asked for an integrated approach, which is welcome as a general principle.
Baroness Gibson of Market Rasen: My Lords, it is not a question of only the Government going to the organisation. Will it be possible for the staff, who are the experts, to tell the Government what is going on? Any Government would need their advice.
Lord Hunt of Kings Heath: My Lords, I certainly agree with that. One of the changes in the health service is the development of staff surveys by individual NHS organisations, which will help the NHS locally to take account of the issues raised. Without the staff, we shall not achieve such changes. The key element in our announcement today is the provision of incentives to encourage the staff to deliver the kind of change programme that we want.
Many members of staff have taken part in the development of the NHS Plan and the NHS modernisation board. We are obviously anxious to continue that effective dialogue.
Lord Eden of Winton: My Lords, the Statement seemed to suggest that someone needing hospital care could shop around between hospitals and determine which one to go to. That all seems fine, but it is extremely difficult for people to get the information that they need to enable them to make that kind of choice.
I have in mind a case that was brought to my attention last week. A patient was due to attend hospital for urgent treatment, but the hospital said that it could not treat him for several months. While that patient waited for treatment, he died. That is not a unique case. If the patient, or the people looking after him, had had information about going to another hospital for treatment, his life might have been spared. How will the system work in practice? If one hospital cannot offer treatment, how will information be conveyed to patients that treatment is available elsewhere? Will their GPs be told? How will information be held centrally so that all patients at all levels of income will know where they can get the treatment that they need?
Lord Hunt of Kings Heath: My Lords, I could not agree more with the noble Lord. Without information, it is difficult to see how a patient can have choice. I confirm that GPs must play a crucial role in helping to advise patients on choice and in making judgments about the most suitable hospital to attend.
I accept that at a national level we have to ensure that information is available to enable patients to make an informed choice. One of the purposes of the
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new health inspectorate is to ensure that this kind of information is provided robustly so that patients can make sound decisions.
We are starting pilots on the choice scheme from July this year for coronary heart disease patients. Anyone who has waited for more than six months for a heart operation will be contacted by a patient care adviser to discuss the options for treatment. Such patients will be offered a shorter wait at another NHS or private hospital, or even the option of treatment abroad.
We are putting in place members of staff who can help patients to make decisions. GPs will have an equally important role. Ultimately, we need to build greater capacity into the health service. As the years go by and we have more beds, more hospitals and more staff, the element of choice will become greater.
Lord Chan: My Lords, I speak as a non-executive director of a primary care trust. I welcome the fact that there will be more resources to eliminate the negative budget that we received. Much of the money is already allocated to a number of projects, so will the Minister assure us that, in the auditing and inspection of primary care trusts, sufficient time will be given for us to settle down and get on with our work? Will he also assure us that unnecessary and unsustainable public expectations of immediate and major changes will not arise?
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for raising the matter of primary care trusts. I understand what he says about not wishing to load new organisations with too many responsibilities. Of course, we need to ensure that PCTs are focused on the essential elements of not only producing good services but of commissioning effective services.
Primary care trusts are an essential component of the reform process. That is why it is important that three-quarters of the budget will be spent on PCTs by 2004. I know from our debates on primary care trusts that some noble Lords caution us about giving that level of resource to PCTs by 2004, but the Government believe in the potential of PCTs and in putting money with GPs who will make essential decisions in the NHS. We must press on with that as urgently as we can.

Export Control Bill
4.40 p.m.
Report received.
Clause 1 [Export controls]:
Lord Redesdalemoved Amendment No. 1:
Page 1, line 10, at end insert—
"( ) Where export controls apply to goods which are within one or more of the categories mentioned in paragraph 1(1) of the Schedule, the guidance issued under section 7 shall have regard to their issues relating to sustainable development and to any possible consequences of the goods being controlled that are of a kind mentioned in the Table in paragraph 3 of the Schedule."

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The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 24. Both amendments are tabled in my name and that of my noble friend Lord Razzall. Both issues deal with sustainable development.
In Committee Her Majesty's Government introduced significant redrafting of the section on guidance and the schedule of purposes, apparently in response to concerns expressed about the way sustainable development was treated in the Bill. Unfortunately, the Government refused to make the simple changes that have long been proposed to include sustainable development as one of the relevant consequences in the schedule, which would place the issue on a similar footing as concerns about human rights, regional stability and terrorism.
Sustainable development was included as a relevant consequence when the Bill was first published in draft form. However, in every subsequent incarnation it has been omitted. The purpose of Amendment No. 1 is to provide belt and braces. When a similar amendment was introduced at the last stage of the Bill, the Minister raised significant concerns about its suitability. We have attempted to redraft the amendment to allay his anxieties.
The Minister raised the issue of "widgets". Amendment No. 1 was drafted to exclude the consequence of the Secretary of State having to review every single item that could conceivably need an export control order. However, a real concern was raised as to the phraseology used in the amendment drafted by the Government at the last stage. In Clause 7(4) the words "if any" were added.
The Minister expressed his opinion that the words "if any" give the Secretary of State the ability to make judgments over what was and what was not important while being directed over matters which would be considered relevant under the Bill. However, there is anxiety that the ability of the Secretary of State to make such decisions is far too broad and would mean that certain aspects that many feel should fall within the ambit of the Bill could fall outside it. The purpose of the amendment therefore is to add to the schedule categories which are already covered by the Bill thereby avoiding the widget problem but at the same time ensuring that the Secretary of State takes into consideration sustainable development.
Amendment No. 1 is particularly concerned with the problem that arises within different departments in government; that is, that one department has one view and another department can take a different view. That is clearly illustrated by the situation in Tanzania. Even since the last stage of this Bill matters have developed. The air transport control system seems to have fallen foul of the World Bank, which does not believe it to be a good investment. It is being scrutinised by the International Commission for Aviation. Also the DfID has frozen a £10 million development loan to one of the poorest countries in the world pending the outcome.
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If I am wrong on any of the aspects of Tanzania—obviously it is more complicated than can be envisaged superficially—that does not change the underlying need for the amendments. There will always be a difficulty between the granting of an export licence which is driven by exporters and the real need of developing countries not to have exported to them armaments, weapons systems or their components which could jeopardise their sustainable development. I beg to move.
Lord Judd: My Lords, I congratulate the noble Lord, Lord Redesdale, on moving this amendment. In doing so I remind the House that I am closely involved with the work of Saferworld and Oxfam, two organisations deeply concerned about the issues in this Bill.
I have absolutely no doubt that my noble friend shares our common objective. Does he not accept that, as so well argued by the noble Lord, Lord Redesdale, the insertion of the words "if any" creates a loophole? Does he not also agree that it would be unfortunate if, in the context of his own goodwill, we accepted wording which enabled some successor totally to disregard the issues which concern us today and which are spelt out in the schedule.
That is the point. The problem is not the people in place at the moment; it is those who may be in place in the future. If we are of serious intent we should have watertight wording, not ambivalent wording. That is why Amendment No. 1 is so crucial in what it seeks to achieve for the long-term future.
Baroness Miller of Hendon: My Lords, at Second Reading we supported the idea of sustainable development. We were pleased to see the amendment tabled by the noble Lords, Lord Redesdale and Lord Razzall. We on these Benches support the amendments.
The Lord Bishop of Manchester: My Lords, I too welcome Amendment No. 1. I do so because I want to remind the House of the moral presumption against the export of goods that are harmful and the moral presumption in favour of poverty relief, accessibility to health, education and welfare, and human flourishing.
If we are serious as a nation as well as a government about halving global poverty by the year 2015, there will need to be greater effort not only on the humanitarian front of the voluntary organisations, but also diplomatically, economically and politically to reduce the number of countries embroiled in armed conflict, and to improve the conditions in which regeneration can occur and be sustained. So I am glad to see that the criteria for sustainable development are written deeply into the Bill. We need to ensure that they stay.
The issue of sustainable development is plainly recognised by Her Majesty's Government. Yesterday I sat through a debate calling attention to the Green Paper, Planning: delivering a fundamental change. Several speakers referred to the importance of taking sustainable development into account when considering planning in

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the United Kingdom. Indeed, the noble and learned Lord, Lord. Falconer, in his winding speech—I am never sure why it is called "winding" and not "winding-up"—spoke of "planned sustainable development" and "delivering sustainable development" within the UK.
However, the weight given to sustainable development in the Bill—it is the weight that is important—is weak. I recognise that the Bill involves controlling certain goods and taking sustainable development into account, and that it is not about sustainable development per se. I heard that in Committee. But the responsibility currently placed on the Secretary of State is inadequate.
In Committee on 4th March, at col. 100 of Hansard, I was pleased to hear the Minister say that,
"in controlling the items specified in the schedule table, we [the Government] should apply the sustainability criterion. That is why we put that in the relevant clause, where it is made clear that it is absolutely mandatory that it should be considered … We have made it clear that it is a mandatory requirement".
However, the Bill currently reads,
"consideration, if any, to he given".
I am not a lawyer. I am a "bear with little brain" when it comes to the legal mind. But to the lay mind there seems to be a considerable gap and weight of intention between it being "absolutely mandatory" that sustainable criterion should be considered and,
"consideration, if any, to be given … to".
The amendments give us the opportunity to ensure that the Secretary of State specifies that regard shall be had to what I hope noble Lords will agree is a significant matter. If we are serious about halving world poverty, we need to strengthen our legislation regarding what should and should not be exported and imported, taking into account the purposes and outcomes of such exports and the consequences of granting licences for them.
Lord Joffe: My Lords, I too support Amendment No. 24. The words "if any" add very little. They create flexibility which is not really required. The flexibility could easily be gained in the phrasing of the guidance given by the Minister. As the noble Lord, Lord Judd, has said, they open up a loophole for future Secretaries of State to take advantage of a wording that really should not be there.
Lord Rea: My Lords, I reiterate the view of my noble friend Lord Judd that all those who support these amendments, particularly those who speak from these Benches, are aiming in the same direction. The noble Lord, Lord Redesdale, and others have talked about those controversial words "if any". The noble Lord also brought widgets into the argument. The amendments are very useful in that they restrict the application of matters of sustainable development to a list of items—to none of which could the word "widgets" be applied. The table to the Schedule, entitled "Relevant Consequences", lists the serious matters that have to be taken into account: national security; peace, security or stability in any region of the world; the carrying out of acts that facilitate the development or use of weapons of mass destruction;
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internal repression in any country; and breaches of human rights. The amendment should solve my noble friend's question. I very much hope that it will be agreed to.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I shall speak to Amendments Nos. 1 and 24. They have not been degrouped. It is easiest to take the two amendments together. Both amendments relate to the provisions in the Bill which oblige the Government to address issues relating to sustainable development and those in the Schedule's table entitled "Relevant Consequences" when issuing guidance under Clause 7.
Amendment No. 24 is very similar to an amendment tabled in Committee. It would replace the existing requirement in Clause 7(4) that guidance issued under the Bill must include guidance about the "consideration (if any)" to be given to sustainable development and the issues in the Schedule table, with a requirement that the guidance must state that "regard shall be had" to such issues.
Amendment No. 1, if I have understood it correctly, has a slightly more focused intention, which is to provide that guidance issued under Clause 7 in relation to export controls on military goods shall have regard to sustainable development and to the issues covered in the table to the Schedule. I believe that Amendment No. 1 has been tabled in the spirit of compromise, as a possible alternative to Amendment No. 24, on the basis that it seeks to meet some of the concerns that the Government expressed in Committee about the consequences that would follow from having a blanket requirement to have regard to sustainable development, and all the issues covered in the Schedule table, in the assessment of every individual export licence application.
If that is the case, I very much welcome the noble Lords' attempt to deal with the Government's previously stated concerns on this issue. However, as I shall explain in more detail in due course, Amendment No. 1 does not meet all the concerns that I identified in Committee. Perhaps I may concentrate on Amendment No. 24, as it raises the key question of whether the Bill as it now stands adequately provides for a lasting commitment on all future governments to address sustainable development and the issues listed in the Schedule table in the export licensing process.
Let me say at once that I have sympathy with the noble Lord's aim in tabling the amendment and with the views of the noble Lord, Lord Judd, on the matter. I have no more confidence than he or the noble Lord, Lord Judd, have in the goodwill of my successors in other governments on this issue. We certainly do not want to leave open the possibility that a future government could undo our achievements in securing a clear commitment to sustainable development and all the other issues covered in the EU code in the UK arms export control regime. However, we are confident that we have not left open such a possibility. Amendment No. 24 is not necessary to prevent such a possibility arising in the future.

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Before explaining the reasons why the revised wording suggested by the noble Lord is not necessary, let me first explain why we have worded Clause 7(4) as we have and why it needs to be retained in the Bill.
The Government do not deny that there is a difference in effect between the revised wording proposed by the noble Lord for Clause 7(4) and that which the Government moved in Committee. The requirement that guidance published under Clause 7 must include guidance,
"about the consideration (if any) to be given"
to particular matters, provides a degree of flexibility which a requirement that such guidance must state that "regard shall be had" to those matters would not. I should like to explain why the Government consider that this flexibility is necessary.
As I said in Committee, the Government need to be able to take common-sense decisions and to reach a judgment when taking export licensing decisions that particular considerations are simply not relevant in certain cases and situations. However, the amendment would require this and future governments to consider sustainable development and every issue covered by the Schedule table whenever they exercised licensing powers under the Bill.
A worrying consequence of that would be to compromise significantly the Government's capacity to comply with future international obligations and commitments relating to export control. I stress that in pursuing these it is not necessarily for the UK to decide to which factors regard must be had in the taking of export licensing decisions. That depends on the exact terms of the obligation or commitment. However, Amendment No. 24 would oblige the Government to have regard to sustainable development and all the Schedule issues in all cases.
The amendment would also fetter more generally the Government's ability to take common-sense decisions that, in certain cases, consideration of sustainable development and issues in the Schedule table are not relevant. For example, a proposed export of a single military vehicle to a developed country such as the United States would clearly not raise sustainable development issues. Nor would sustainable development, and several of the issues in the Schedule table, be relevant in the consideration of most applications for a licence to export objects of cultural interest.
However, the Government would not be able to say, "We will not take account of sustainable issues in these cases" and give guidance on it, because the legislation would require them to say that they would take account of sustainable development and those issues. That is why the reference to "consideration (if any)" in Clause 7(4) is needed. It allows the Government to retain the capacity—
Lord Judd: My Lords, I am very grateful to my noble friend for giving way. What he has just said is exactly what puzzles us. If it is not really necessary to take the issue of sustainable development seriously,
1102
there is no need to have the words "if any" in the Bill. Sane, sensible officials, sitting down to consider how to process this matter would very quickly see that in this issue it was not relevant. Why on earth do we have to put in the words "if any", thus giving some future Minister the opportunity to say, "In this case, not at all"?
Lord Sainsbury of Turville: My Lords, perhaps I may respond to a point made by the right reverend Prelate. We are considering legislation; we are not considering what a sensible lay person might think about the matter. When the legislation of a country says, "You must consider sustainable development", it must be considered. That is what laws are about. A government cannot say, "I am sorry, we are not going to consider it"; they must consider it. They cannot give guidance to say that they will not. Legislation sets certain requirements on governments and civil servants. It is therefore extremely important that the wording is flexible in that manner.
5 p.m.
Earl Russell: My Lords, is it not possible for a Minister to consider the issue of sustainable development and conclude that it does not apply to a case? Would it not be reassuring to know that the Minister had done so before deciding that it did not apply?
Lord Sainsbury of Turville: My Lords, I hope that that was the point that I made. In those circumstances, we could not then say to people in a sensible manner, "In the following sort of cases, under the regulations, we shall not consider sustainable development". We cannot give practical guidance to people to say, "No, in these cases"—such as sending a particular vehicle to America—"we shall not spend our time and you need not be concerned about our taking sustainability into account". That is what we are trying to deal with here, and it is not all right to say that civil servants and Ministers can just ignore or not take seriously what the legislation states.
Lord Judd: My Lords, I am most grateful to my noble friend for giving way again, and I apologise for interrupting again. We are not saying that they should not consider it; we are saying that early in the course of considering it, they would realise that it was not relevant and that there was no case.
Lord Sainsbury of Turville: My Lords, I have already answered that point. It is a question not only of considering it and saying whether it is relevant but of whether we can give sensible guidance.
It is true that Amendment No. 1, if accepted as an alternative to Amendment No. 24, would provide less of a blanket requirement on government to have regard to all issues in every case. However, it would retain the blanket requirement in respect of export controls on military goods. That would introduce a damaging rigidity to the arms export licensing process, obliging the Government to consider sustainable

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development and every issue in the schedule's table in considering every arms export application, even where one or more of those issues was clearly not relevant—such as in the example that I gave of a military vehicle to be exported to a developed country. I also point out that the need not to compromise our ability to implement international commitments under the Bill applies equally to controls on military goods as to other categories of export control.
However, we are confident that the words "if any" in Clause 7(4) would not allow a future government freedom to decide to ignore sustainable development, or any of the issues in the schedule's table, by saying simply. "We have considered sustainable development and concluded that it has no place in consideration of any export licences". The Bill makes clear that it will be a requirement on any government to issue guidance about the general principles to be followed when exercising licensing powers and that that guidance must address sustainable development and the other important issues covered in the schedule's table.
Moreover, Clause 7(5) requires that the Government "shall have regard" to that guidance when taking decisions on export licences. I emphasise that Clause 7(5) determines the status of the guidance, not Clause 7(4), which purely sets out what must be in the guidance.
I also reiterate the important point that were a future government to decide not to take sustainable development considerations into account in arms exports, not only would Clause 7 require them to publish that decision and so take it in the full glare of parliamentary scrutiny, but the Bill would also require them to justify such a decision. In that context, it is important to remember that the issue of sustainable development and the issues listed in the schedule's table are all reflected in the EU Code of Conduct for Arms Exports, which represents a binding political commitment to our EU partners.
While the UK is a member of the European Union and committed to the EU Code of Conduct for Arms Exports, it is difficult to see how any future government could ignore any of the criteria, including that of sustainable development, without facing a real likelihood of successful challenge in the courts. Moreover, the explicit reference to the consolidated criteria included in Clause 7(8) and the accompanying statement that the criteria,
"shall (until withdrawn or varied under this section) be treated as guidance",
under the Bill reduce still further a future government's room to deviate from any part of the criteria.
None the less, I recognise that concern continues to be felt about the possible intention or likely effect of the words "if any" in Clause 7(4). At my meeting last Friday with the UK Working Group on Arms, the group referred to advice obtained by it on the issue from Matrix Chambers and specifically to the suggestion in Matrix Chambers' advice that it might be helpful if a Minister were to spell out clearly in debate that the intention behind the inclusion of the words "if
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any" is not to open up a loophole in the Bill. The group asked whether I would be prepared to give such an undertaking before the House at Report. I told it that I should be pleased to do so, and I am happy to put on record today that the intention behind the words "if any" in Clause 7(4) is purely to enable the Government to make commonsense decisions about the circumstances in which sustainable development, or any of the schedule issues, would not be relevant 'co a licensing decision.
Not only are the words "if any" not intended to create a loophole allowing the Government to ignore any particular issue, we are confident that they do not offer any government the opportunity to ignore either sustainable development or any of the schedule issues, where that would be contrary to our obligations under the EU code of conduct.
I turn to the question of Tanzania as it relates to sustainability. I make clear that the Government would not have granted a licence in that case if to do so had been in contravention of the consolidated criteria. Sustainability was an issue that was taken into account and a judgment was reached on that basis.
In conclusion, I repeat that the Government acknowledge that the wording in Clause 7(4) provides a degree of flexibility which the wording proposed in the amendments does not. But I hope that noble Lords will accept my explanation of' why that flexibility is needed and that they will also accept my categoric assurance that it does not offer a means by which a future government could choose to disregard sustainable development or the schedule issues in the export licensing process. On that basis, I hope that the noble Lord will withdraw the amendment.
Lord Redesdale: My Lords, I thank the Minister for that comprehensive reply and for his helpful assertion about the use of the words "if any". However, he finished by discussing the need for flexibility. That is the key issue about which many of us are concerned: the flexibility to decide what is and what is not important. To be granted, an export licence must fulfil many criteria. It is not beyond the wit of man to provide a box to be filled in. Although the clear example that the Minister gave of a military vehicle for America is cut and dried, the same cannot be said of many other cases.
I was also interested in the Minister's view that the intricacies of legislation are way beyond the layman.
Lord Sainsbury of Turville: My Lords, I did not say that. I said simply that approaching these matters by saying what I as a layman would think might be right is no kind of defence in law or a good argument in most legal cases, in which people tend to think that w hat the law says is what is important. Ministers cannot take a cavalier view about legislation and simply say that we ignore it because it is not sensible.
Lord Redesdale: My Lords, I apologise if I gave the wrong impression, but what the Minister said emphasises my problem with the expression "if any". Although the Minister has given a definition that the

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Government will observe of "if any", if it were to be argued in court it would be a difficult case and not cut and dried.
The Minister raised my example of Tanzania. The World Bank was not in favour of that loan and it will be interesting to hear what the International Civil Aviation Organisation has to say about what is actually a military air traffic control system.
This is a very good Bill. We support it, and I mean no criticism of it in introducing belt and braces. I make no insinuation that the Government have anything but the highest view of this. However, I believe that there is a loophole here and that it could be used. The matter could end up in court. Therefore, I beg leave to test the opinion of the House on the issue.
5.10 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 120.

Division No. 1

CONTENTS

Aberdare, L.

Eden of Winton, L.

Ackner, L.

Elliott of Morpeth,L.

Addington, L.

Falkland, V.

Alderdice, L.

Ferrers, E.

Alexander of Weedon, L.

Flather, B.

Ampthill, L.

Fookes, B.

Anelay of St Johns, B.

Freeman, L.

Arran, E.

Gardner of Parkes, B.

Astor of Hever, L.

Garel-Jones, L.

Attlee, E.

Glenarthur, L.

Avebury, L.

Glentoran, L.

Bagri, L.

Goodhart, L.

Barker, B.

Goschen, V.

Beaumont of Whitley, L.

Gray of Contin, L.

Blatch, B.

Greenway, L.

Boardman, L.

Griffiths of Fforestfach, L.

Bowness, L.

Hambro, L.

Bradshaw, L.

Hamwee, B.

Bridgeman, V.

Harris of Richmond, B.

Brightman, L.

Haslam, L.

Brooke of Sutton Mandeville, L.

Hayhoe, L.

Brougham and Vaux, L.

Higgins, L.

Bruce of Donington, L.

Holderness, L.

Bumham, L.

Hooper, B.

Buscombe, B.

Hooson, L.

Butterworth, L.

Howe, E.

Byford, B.

Howe of Aberavon, L.

Caithness, E.

Howe of Idlicote, B.

Campbell of Alloway, L.

Howell of Guildford,L.

Campbell of Croy, L.

Hunt of Wirral, L.

Carnegy of Lour,B.

Jellicoe, E.

Chadlington, L.

Jenkin of Roding, L.

Chan, L.

Joffe, L.

Clement-Jones, L.

Kimball, L.

Colwyn, L.

Kingsland, L.

Cooke of Thorndon, L.

Lane of Horsell, L.

Cope of Berkeley, L.

Liverpool, E.

Cox, B.

Lucas, L.

Craigavon, V.

Luke, L.

Crickhowell, L.

Lyell, L.

Cumberlege, B.

McColl of Dulwich,L.

Dholakia, L.

MacGregor of Pulham Market, L.

Dixon-Smith, L.

1106

Mackay of Clashfem, L.

Roper, L.[Teller]

McNally, L.

Rotherwick, L.

Maddock, B.

Russell, E.

Manchester, Bp.

Russell-Johnston, L.

Mancroft, L.

Ryder of Wensum, L.

Marlesford, L.

Saatchi, L.

Mayhew of Twysden, L.

Sandwich, E.

Miller of Hendon, B.

Scott of Needham Market, B.

Monro of Langholm, L.

Seccombe, B.

Montrose, D.

Sharman, L.

Mowbray and Stourton, L.

Sharp of Guildford, B.

Murton of Lindisfarne, L.

Shaw of Northstead, L.

Neill of Bladen,L.

Sheppard of Didgemere, L.

Noakes, B.

Shutt of Greetland,L.

Northesk, E.

Skelmersdale, L.

Northover, B.

Soulsby of Swaffham Prior, L.

Norton of Louth, L.

Stern, B.

Oakeshott of Seagrove Bay, L.

Stewartby, L.

Palumbo, L.

Strathdyde, L.

Patten, L.

Swinfen, L.

Pilkington of Oxenford, L.

Taylor of Warwick, L.

Plummer of St. Marylebone, L.

Tebbit, L.

Razzall,L.

Thomas of Gresford, L.

Reay, L.

Thomas of Gwydir, L.

Redesdale,L.[Teller]

Thomas of Walliswood, B.

Rees, L.

Trefgarne, L.

Rennard, L.

Trumpington, B.

Renton, L.

Vivian, L.

Roberts of Conwy, L.

Walker of Worcester, L.

Rodgers of Quarry Bank, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Gibson of Market Rasen, B.

Ahmed, L.

Gilbert, L.

Allenby of Megiddo, V.

Golding, B.

Alli, L.

Gordon of Strathblane, L.

Amos, B.

Gould of Pottemewton, B.

Andrews, B.

Grabiner, L.

Archer of Sandwell, L.

Graham of Edmonton, L.

Ash ton of Upholland, B.

Grocott, L.

Bach, L.

Hardy of Wath, L.

Bassam of Brighton, L.

Harris of Haringey, L.

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Haskel,L.

Billingham, B.

Hayman, B.

Blackstone, B.

Hilton of Eggardon, B.

Bledisloe, V.

Hollis of Heigham, B.

Borrie, L.

Howells of St. Davids, B.

Bridges, L.

Howie of Troon, L.

Brooke of Alverthorpe, L.

Hoyle, L.

Brookman, L.

Hughes of Woodside, L.

Butler of Brockwell, L.

Hunt of Chesterton, L.

Campbell-Savours, L.

Hunt of Kings Heath, L.

Carter, L.[Teller]

Irvine of Lairg, L. (Lord Chancellor)

Chandos,V.

Christopher, L.

Jay of Paddington, B.

Clark of Windermere, L.

Jordan, L.

Clarke of Hampstead, L.

Kilclooney, L.

Clinton-Davis, L.

Layard, L.

Corbett of Castle Vale, L.

Lea of Crondall, L.

Craig of Radley, L.

Levy, L.

Crawley, B.

Lipsey, L.

David, B.

Macdonald of Tradeston, L.

Davies of Coity, L.

McIntosh of Haringey, L. [Teller]

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Mclntosh of Hudnall, B.

Desai, L.

MacKenzie of Culkein, L.

Dormand of Easington, L.

Mackenzie of Framwellgate, L

Dubs, L.

Massey of Darwen, B.

Evans of Watford, L.

May of Oxford, L.

Falconer of Thoroton, L.

Merlyn-Rees, L.

Farrington of Ribbleton, B.

Milner of Leeds, L.

Filkin, L.

Mishcon, L.

Fyfe of Fairfield, L.

Mitchell, L.

Gale, B.

Morris of Aberavon, L.

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Morris of Manchester, L.

Slrabolgi, L.

Nicol, B.

Strange, B.

Palmer, L.

Symons of Vernham Dean, B.

Pendry, L.

Temple-Morris, L.

Pitkeathlcy, B.

Tenby, V.

Planl of Highfield, L.

Turner of Camden, B.

Quinton, L.

Uddin, B.

Ramsay of Cartvale, B.

Vincent of Coleshill, L.

Rcndell of Babergh, B.

Walpole, L.

Richard, L.

Warnock, B.

Wedderburn of Charlton, L.

Rogers of Riverside, L.

Whitaker, B.

Sainsbury of Turville, L.

Whitty, L.

Sawyer, L.

Wilkins, B.

Scotland of Aslhal, B.

Williams of Mostyn, L. (Lord Privy Seal)

Serota, B.

Scwel, L.

Williamson of Horton, L.

Simon, V.

Wilson of Tillyom, L.

Stone of Blackheath, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.21 p.m.
Lord Sainsbury of Turvillemoved Amendment No. 2:
Page 1, line 11, leave out "An order under this section may" and insert "The Secretary of State may by order"
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5, 7, 8, 9, 11 and 12. These grouped amendments are technical, drafting amendments that are needed in order to make the appropriate distinctions between the powers in the Bill in respect of areas within national competence, and those in respect of the implementation of directly applicable Community controls in areas of Community competence.
Amendments Nos. 2, 5, 8 and 11 introduce a series of similar amendments to Clauses 1, 2, 3 and 4. These make it clear that an order made under the Bill introducing export, transfer, trade or technical assistance controls is different from an order under Clause 1(5), 2(5), 3(6) or 4(5) giving effect to directly applicable controls imposed by Community regulation. In the case of the latter, not all of the subsidiary provisions in the clauses should apply. Amendments Nos. 7 and 9 to Clause 3 similarly make clear that subsections (5) and (7) do not apply to the clause as a whole as they do not apply in respect of orders under Clause 3(6) but apply only in respect of controls introduced under the Bill within areas of national competence.
Amendment No. 12 is a consequential of Amendment No. 11. Amendment No. 11, as I have explained, makes clear that an order introducing trade controls will not be made under the clause as a whole, but will either be made under Clause 4(1) that allows for controls to be introduced under national law, or under Clause 4(5), which provides for the introduction of provisions in connection with controls introduced by a directly applicable
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Community provision. This means that it is necessary for the whole definition of what is meant by,
"activities which facilitate the acquisition, disposal or movement of the goods",
contained in Clause 4(7) to apply directly to Clause 4(5), as well as orders introducing controls within national competence. Amendment No. 12 achieves that aim.
As noble Lords are probably aware, the amendments before the House are very technical in nature. However, they are needed to ensure an appropriate distinction is made between our national powers and those that derive from Community obligations. I therefore invite noble Lords to support them. I beg to move.
On Question, amendment agreed to.
Clause 2 [Transfer controls]:
Baroness Miller of Hendonmoved Amendment No. 3:
Page 2, line 2, at beginning insert "Subject to the provisions of section (Academic. Freedom),"
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 4, 6 and 10. Amendments Nos. 3, 4 and 6 are simply paving amendments, although one of them is of slightly more substance and I shall deal with it later. The purpose of these paving amendments is to make way for Amendment No. 10, which I have no hesitation in describing as major and of the utmost importance both for academic freedom and for scientific research; and, indeed, for constitutional freedom.
The content of the main amendment has been altered from what was discussed in Committee. We have sought to take into account the words and advice of the Minister. I have also taken account of numerous further briefings. The amendment incorporates the suggestions made by the noble Baroness, Lady Sharp of Guildford, in her Committee stage amendments and I am very pleased to see the noble Baroness's name attached to the current amendments.
I am not just speaking for the two of us; I am speaking on behalf of Universities UK, formerly known as the Council of Vice-Chancellors and Principals, and for the Association of University Teachers, which represents 45,000 academic and academic-related staff; and, indeed, for the Foundation for Information Policy Research. Therefore, I can say that these amendments speak for a wide branch of academia, who feel most strongly about the issue. It is a subject of the gravest concern and of the highest anxiety to the whole of scientific academia.
Despite the credentials of this important amendment, it was arbitrarily—I hope that the Minister will forgive me for saying so—dismissed by the Government. There was not even an offer to find a way to meet the justifiable fears of those who, through this amendment. seek the protection of Parliament.

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The new clause proposed by the Minister in Amendment No. 22 I can only describe it as pathetic and meaningless. I ask noble Lords to consider the idea that the Secretary of State should,
"have regard to the need to avoid any unreasonable restriction"!
We all know about unreasonable restraint; indeed, we all know about "unreasonable". But we just have to get on with it. The fears I have mentioned were not allayed by the anodyne words of the Minister in his response in Committee. As a result, I received even more briefing from academia. Therefore, I have no hesitation in asking your Lordships to consider the current amendment.
As noble Lords are aware, the Bill deals with controls on the export of goods and equipment—from weapons to items of cultural importance. It also deals with the export of technology. Moreover, under Clauses 2 and 3, it ventures into the fields of intangibles, such as information, and, as it stands, into the field of thoughts and ideas.
The amendments and my proposed new clause revolve around the principles of freedom of expression, freedom of teaching, and freedom of research. Those freedoms are fundamental human rights to which the political objectives of the state should normally be subservient. Unless my amendments, or others incorporating the same principles, are included in the legislation, then, despite the certificate given by the Secretary of State in the preamble to the Bill, I have no doubt at all that it would not stand up to the light of a challenge under the convention on human rights.
The extension of the control of export of goods to the control of intangibles—the control of thoughts and ideas—is a radical step, unheard of in a democracy. It has serious constitutional implications. Goods are exported if they are physically moved out of the country. It is physically impossible to control ideas. But that is what the Government are trying to do. By virtue of Clause 2(2)(c), they are even attempting to control the exchange of ideas within the United Kingdom. It is for that reason that a solid body of academia is totally opposed to some of the Government's proposed provisions, which are inappropriate in a country where universities have been centres of learning, research and discovery for over 900 years. As drawn, the Bill will at the least inhibit the latter; at the worst, it will reduce the ability of our universities to teach future generations. Moreover, it will drive undergraduates to study elsewhere in the world. By preventing the export of ideas, I suggest that it will also result in graduates and researchers exporting themselves elsewhere to carry out their work.
Perhaps I may now explain the main provisions of my amendments. Amendment No. 4 proposes the deletion of Clause 2(2)(c) and (d). Together, those paragraphs give the Government power to control what the Bill calls "the transfer of technology", which
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includes teaching technological subjects to anyone inside the United Kingdom where there is reason to believe that the technology may be used outside the United Kingdom. But the teachings of our universities and colleges are expected to be used outside the United Kingdom. Never mind the thousands of British scientists and technicians who have travelled the world for hundreds of years taking their knowledge and skills with them. What on earth do the Government think that the thousands of foreign students who come to this country every year will do with the technology that they acquire here? They will naturally take it back home and use it either there, or elsewhere in the world.
It is undesirable, I accept, that the citizens of some countries should be taught certain subjects—atomic science, or aspects of biology or chemistry—that could be translated into the manufacture of chemical or biological weapons, or that they should receive instruction enabling them to fly aircraft into skyscrapers. Of current vital and commercial importance is the science of cryptology and authentication codes. They were first devised in 1964 to prevent the misuse of atomic weapons by potential Dr Strangeloves. But today we all use them on the remote controls in our cars.
That is a minor but telling example of how small businesses exporting common-place goods and services in the public domain may unwittingly fall foul of wide-sweeping regulations and their owners may be exposed to possible criminal sanctions. The encryption of electronic documents will play a vital part in international commerce in the future and perhaps, together with other wide-ranging categories of scientific knowledge, the Government are right to insist that care is taken about with and to whom sensitive information is shared or taught.
If as a matter of policy the Government want to prohibit students from this or that country from coming here to study this or that subject, the onus of exercising that control must rest with the Government and not with the teaching institutions which have neither the skills nor the resources to screen their potential students. They have no means of controlling what students will do with their knowledge once they have completed their courses. Indeed, the whole concept that once you have imparted knowledge or information to someone, you can control what he does with it is such manifest nonsense that the whole of the two subsections to which I refer are completely unenforceable absurdities. Do we seriously expect our universities to ask their chemistry students whether they intend to make poison gas?
The provision is complete control-freakery, raised to the umpteenth degree and totally impractical to enforce to boot. If the Government want to control who is taught by whom, as they control who comes into the country, except perhaps via the Sangatte Camp and Eurotunnel, the instrument that they must use is visas—the issuance of visas.

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In a letter which the Minister wrote to Dr Ross Anderson of Cambridge University on 28th February, he said:
"There are no powers in the Bill to license foreign students. The Bill is not designed to enable the introduction of a compulsory scheme to vet students".
Apart from noting the qualification about a compulsory scheme, and whatever the Minister may believe the Bill is or is not designed to do, the clear wording of the Bill unquestionably means that there is to be some form of control on the entry of some students from some countries if they want to study particular subjects.
Before the Minister in his response tries to suggest that I have got it all wrong, I invite him to look at the minutes of a meeting which took place on 21st September last between two of his officials, a representative of the Foreign and Commonwealth Office and another from the Department for Education and Skills on the one side and four representatives of Universities UK on the other. I shall not trouble the Minister or your Lordships with the five pages of the minutes, but I shall gladly make them available to anyone who wants to see them.
In essence, the points being made by the Government were:
"The clause has now been modified … and it now states that a licence will be necessary only where it is known or the Government has informed the institution that there is an intention to use subjects in relation to a weapon-of-mass-destruction programme".
The official went on to say that the onus has shifted from the institution to the Government. Contrary to what the official says, subsections (2)(c) and (2)(d) of Clause 2 have not altered by one single punctuation mark between the time the Bill was introduced in the other place on 26th June 2001 and today. And nowhere does it say that the onus is on the Government to notify the universities about anything. In fact, the Government in Committee in your Lordships' House totally opposed any modification to these provisions.
The representatives of the Department of Trade and Industry also said that the need for a licence would apply only to particular end users. It is abundantly clear that contrary to what the Minister told Dr Anderson in his letter of 28th February, the Bill will introduce a system of compulsory vetting of some students and I hope that in the light of the contents of the meeting to which I have referred, the Minister will not try to persuade your Lordships to the contrary.
It is also clear that there is nothing in the Bill as it stands which shifts the onus of vetting and licensing away from the universities—
Lord Sainsbury of Turville: My Lords, will the noble Baroness say which part of the Bill suggests that there is any system in it for the licensing of foreign students as opposed to licences which will be required by the person who is passing over the information? The whole nature of the Bill is about actions which pass
1112
information over. There are licences in that respect, but they are quite distinct from a system of licensing of students.
Baroness Miller of Hendon: My Lords. I shall continue with my speech and come back to that point in a moment. That is why my Amendment No. 4 unequivocally calls for the rejection of subsections (2)(c) and (2)(d).
I shall return to another aspect of those subsections when I explain subsection (4) of the new clause which I am proposing as Amendment No. 10. In view of their importance I should now like to explain them paragraph by paragraph but as shortly as possible.
Subsection (1) begins with the preamble restricting the right to control academic freedom except in three cases. The first is if such restrictions are imposed by any other statute. I have in mind, for example, the Official Secrets Act. The second is if such control is required by virtue of any international treaty obligation of the United Kingdom. I have deliberately stressed that it must be a treaty obligation because treaties receive a cursory examination by Parliament. I do not want to see the Act circumvented by a vague undertaking given by the third secretary in some remote embassy, possibly without authority. Thirdly, I have inevitably had to accept that the sovereignty of our ancient Parliament is now subject to the dominion of Brussels.
With those caveats, subsection (1) restricts the right of the Government to make control orders on the transmission of thoughts and information in three cases. However, as I have said, there will be found to be a fourth when we come to the stand-alone provisions of subsection (4). The three instances where the Secretary of State cannot make control orders are, first, where the information is already in the public domain—and it is not necessary for me to explain that. If technological information is already in the public domain, it is a pointless exercise to try to ban its further dissemination. Phrases such as "putting the genie back in the bottle" or "putting the toothpaste back in the tube" spring to mind.
Secondly, the Secretary of State should not be able to prevent the placing of information in the public domain, including for patent and copyright purposes. That is censorship of the highest order and once again there is no practical means of enforcing such a ban. In these days when one can surf the Internet and find out how to make atomic bombs—at least in theory because, of course, the resources needed are well beyond the means of the average do-it-yourself practitioner—any ban on anonymously opening up a website is impossible to police. In fact, you do not have to use the Internet. Apparently, as we read in the newspaper last week, you can find it at the Public Record Office, courtesy of the Ministry of Defence, one of the agencies which is supposed to monitor licence applications.
Finally, I propose in the interests of academic freedom that the Government should not have the power to censor what may be taught. That is the very

1113
power they are seeking—or, if I do them an injustice, the power they will unwittingly have taken by the Act. Now that they have been told, I expect them to disclaim it and put it beyond their reach.
During the meeting to which I referred a moment or two ago, the senior representative of the DTI said, according to the minutes, that:
"There was no question that undergraduate studies would be affected by the proposed legislation, and that lecturing would also be unaffected as lectures would be treated as putting the matter in the public domain".
That interpretation, incidentally, reinforces my argument about paragraph (b) because at the meeting the DTI accepted that placing material in the public domain could not be banned. Unfortunately, nowhere does the Bill yet contain that inhibition, but it will if my amendment is accepted.
Your Lordships will have noticed that I do not seek to empower the academics to run amok with what they teach. I propose to prohibit the dissemination of information which they know or—and here the onus is on the teacher—which they ought to have known is intended for use in connection with the manufacture and use of nuclear weapons or biological or chemical weapons and similar nasties.
At this point I want to tell the House that this morning I was informed that the Minister was lobbying noble Lords who had been supportive of my amendment in Committee in order to suggest that it was flawed because the list of wicked purposes in my new clause was simply not long enough. However, it is taken word for word from Article 4 of the Dual Use Regulation of the European Community and we chose those words specifically to meet the criticism based on the article which the Minister made in Committee. I am surprised that having telephoned other people about it he did not get in touch with me. Had he done so, we might have been able to talk about the matter.
I have deliberately not used the phrase "weapons of mass destruction"—
Lord Sainsbury of Turville: My Lords, I must ask the noble Baroness whether the 10-minute conversation we had in the corridor this morning was not one about exactly this issue. I explained exactly why I had grave reservations. I shall explain those later to the House. I explained that they were not about that particular aspect but about the fundamental issue of academics being taken out of the Bill altogether.
Baroness Miller of Hendon: My Lords, if the noble Lord had waited just a few moments longer, I would have told the House that I did meet him in the corridor some two hours ago, at which point we spoke for 10 minutes on another matter. However, he did not give me a chance to say it.
I have deliberately not used the phrase "weapons of mass destruction", which is what I said to the noble Lord earlier. I had understood that the noble Lord was concerned about that, but he said that he was not. My researches tell me that some governments, including
1114
ours and that of the United States, are conducting a kind of Dutch auction to define how many people can be killed before a weapon can be classified as a weapon of mass destruction. I believe that, at this stage, the figure might be as low as 25. That would mean that a bus running amok in Oxford Street possibly could be so defined. There is no purpose in that.
A few moments ago the noble Lord said that I did not mention our conversation. I have mentioned it and I understand that the noble Lord is concerned that my list is not wide enough. That is why I have responded to that for the benefit of those noble Lords whom the noble Lord has already lobbied.
The noble Lord's last-minute concern was that subsection (1)(c) of the proposed new clause would allow an ill-disposed academic to put dangerous information on to the Internet and then pretend that that had been done, "in the ordinary course of academic teaching or research". I should point out that nothing could prevent that being done from an anonymous website in a remote place outside the EU.
More than that, I am legally advised that my carefully drafted clause, which limits my exception to what is done in the ordinary course of academic teaching, along with the further provision that the person must or ought to know that what he is doing may be used for one of the bad purposes I have described, will prevent any such defence. Aside from that, such bad faith action would probably be caught under the Prevention of Terrorism Acts.
Perhaps I may return to the Bill. New subsection (1)(c) allows academics to teach, but restricts them when they know, or ought to know, that what they are teaching could be used for one of the bad purposes that I have comprehensively defined in the clause. Subsection (2) reaffirms the powers of the Comptroller-General under Section 22 of the Patents Act 1977 to prohibit the publication of information in a patent application which might be prejudicial to the defence of the realm or the safety of the public. Subsection (3) operates in a negative way compared with the rest of the new clause. It allows the Secretary of State to make a control order against transferring information or technology outside the EC where the transferor knows or ought to know that they could be used for the undesirable purposes I mentioned earlier.
Finally, I turn to new subsection (4). It underlines the whole concept of the freedom to teach students from abroad or who might go abroad with their knowledge. Perhaps I may refer to a regulation—I shall need to take a deep breath to recite this, although I have had to take several deep breaths in the course of my remarks—Council Regulation (EC) No. 1334/2000 of 22nd June 2000 setting up a Community regime for the control of exports of dual-use items and technology. The first preamble reads:
"Whereas dual use items (including software and technology) should be the subject of effective control when they are exported from the Community".
No one would argue with that. However, Chapter 2, Article 3 is of particular interest. It provides specifically that the regulation does not apply to the

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supply of services or the transmission of technology if that supply or transmission involves the cross-border movement of persons.
Noble Lords will recall that in the days of the Soviet Union, emigration visas were frequently denied on the grounds that the applicant was possessed of certain vital information. Quite rightly, the EC is going to make it clear that those pretexts will not inhibit the free movement of people. It was also suggested to me, perhaps facetiously, that without it a person facing deportation to somewhere outside the EC could prevent it by having the formula for sarin gas tattooed on to a part of his person; I shall not say where.
In this series of amendments I have met the somewhat specious arguments produced by the Government at the previous stage. In response to a question then put to me by the noble Lord, he will see that subsections (2)(c) and (d) enable students to be licensed, a point with which we did not agree. His arguments were designed to support the Government's apparent desire to subject the whole of academia to the rigid controls of Whitehall. I have placed the onus of ensuring that undesirable students are kept out fairly and squarely on the Government, which is where it belongs. It should not be for the universities to have to go through such a procedure. It is for the Government to grant, refuse or cancel visas.
I have tried to produce a rational, practical arid, above all, credible regime which prevents the export of dangerous knowledge and technology while maintaining responsible academic freedom, something this country is famous for. I beg to move.
5.45 p.m.
Baroness Sharp of Guildford: My Lords, my name is attached to all the amendments in this grouping and I should like to speak to them. We do not dispute the assurances with regard to academic freedom given to us in Committee by the Minister, but through this series of amendments we seek to put those assurances on to the face of the Bill.
These problems have arisen because advances in technology mean that, today, the concept of the "transfer of technology" is no longer a matter of the physical passing-over of equipment, plans or blueprints. Technology now comprises processes of both the physical and the biological sciences. The Bill is applied deliberately to "technology of any description". The transfer of technology is also defined very broadly to include oral communication, telephone calls, e-mails, letters and data transfer via computer.
Given the range of technologies today—a whole set of data can be transferred via computer from one country to another—and given the ease with which technologies can be transferred by electronic means, noble Lords will recognise that the potential range of intangible goods covered by Clauses 3 and 4 of the Bill—research ideas, software, course materials such as handouts., lecture notes and slides, as well as academic papers and exchanges between academics in the process of collaborative research—is huge. Again,
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potentially Clause 2 will give the Secretary of State powers of prior review over relevant scientific publications. In deciding whether to grant a licence, the DTI will have to make such a review.
The Government have given us considerable assurances that this is not their intention. They say that the Bill is to apply only to a very narrow range of academic research that could be caught by its provisions and that anything in the public domain, including lectures, lecture notes and handouts, would certainly not be caught. It is to apply only to certain narrow areas of sensitive information where the person concerned either knows or has been informed by the Secretary of State that the area is sensitive and thus one in which they should take care about telling others about what they are doing.
That is fine and we accept those assurances. However, we want to see the assurances put on the face of the Bill. Regulations have been proposed and the assurances are to be incorporated into them. Those regulations are to be adopted by negative resolution. However, I say to noble Lords that that is not enough. The fact remains that the terminology of the Bill is extremely worrying. Even if we were to accept the assurances of the Government that their intentions are benign, our job in this House is to scrutinise legislation and ensure that future generations are protected from the potential activities of governments that are perhaps less benign. It is important that we—the legislature—do not let the executive get away with passing such wide-ranging powers. It is important that the assurances are not given in regulations, but that they are put on the face of the Bill. That is what this series of amendments seeks to achieve.
We have bent over backwards to take into account the points raised by the Minister in Committee with regard to international treaties. We recognise that there are some areas where information is sensitive. People who have been so informed cannot simply hand over information. We have tried to incorporate that into the amendments. However, we feel very strongly that they should be put on to the face of the Bill. It is for that reason that I urge noble Lords to support the amendments. They are important to basic academic freedom which, as the noble Baroness, Lady Miller, pointed out, is something that is fundamental to this country. We ought to make it clear to the executive that the legislature does not think that the Government are doing the right thing.
Lord Judd: My Lords, we have heard two very passionate and powerful speeches in favour of the amendment and the principle of academic freedom. For much of my life I have been involved with centres of higher education and universities and I would take second place to no one in my commitment to the principle of academic freedom. After the passion and sincerity with which the case has been argued, I have therefore some hesitation in making one or two cautious observations about the amendment as drafted.

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I should like those who support the amendment to consider whether it is perhaps drafted too broadly and may inadvertently tip the balance too far away from the measures necessary effectively to control the arms trade.
In her amendment the noble Baroness, Lady Miller, provides exceptions only for restrictions required by any international treaty obligation of the United Kingdom or a directive of the Council of the European Community. However, many of the international export control regimes to which the UK belongs—such as the Wassenaar arrangement and the missile technology control regime—are voluntary arrangements not governed by treaties, and so the proposed exceptions would not apply to them. Given that most of our export and related controls derive from the international regimes, that would be extremely damaging. It would mean that the UK might even have to block any future negotiations in those regimes to control intangible transfers. Controlling intangible transfers was rightly hailed as an achievement of the Bill and these developments should not lightly be reversed.
Subsection (1)(c) of the proposed new clause would effectively exempt the academic community from transfer or technical assistance controls entirely except as they relate to weapons of mass destruction. Again I ask those who support the amendment, whom I respect—there is much in the amendment that must be taken seriously—whether this can really be right.
It is not only with controlling the spread of weapons of mass destruction that the Bill is concerned. In Clause 2 of the Bill the Government propose to introduce controls on the electronic transfer of military technology, the tangible export of which from the United Kingdom is already controlled. It is highly unlikely that this control will seriously impact on the academic community as any academic involvement in the development of controlled military technology is expected to be very limited.
However, it is important not to create a dangerous loophole in the Bill that would be ripe for exploitation. International research collaboration involving exchange of controlled military technology between industrial establishments would require a licence. I therefore do not understand why it is justifiable to allow the same research project to be carried out unlicensed if it is carried out by an academic establishment.
It is important to strike a balance between protecting the vital cause of academic freedom and introducing the controls necessary to regulate intangible transfers of technology that could lead to proliferation. I am worried that the amendment as drafted is too broad. I believe that while it is not perfect and observations could be made about it, in this instance the amendment brought forward by my noble friend the Minister comes closer to meeting in a balanced way the anxieties so well expressed in Committee.
Earl Russell: My Lords, I am grateful to the noble Lord, Lord Judd, for the spirit in which he has addressed this issue. I declare an interest as an academic.
By far the most interesting and difficult parliamentary conflicts are those which are between right and right. I understand that there is an interest of national security involved here. What is a weapon of war is now a matter which is in some doubt. There can be communication which can be used for purposes genuinely destructive to national security, but it is also true that the academic world is increasingly an international, global phenomenon. As John Winthrop once remarked when about to go to the United States, the Church is universal without respect of countries. The same is true of the universities.
The potential for interference with serious research is very real. How to draft a clause which meets a genuine danger without interfering with necessary freedoms is a problem to which not enough thought has been given by any of us. Let me take a parallel case from 1942. Stamp collecting is as innocent a hobby as one can think of, but my parents in Pennsylvania in 1942 had a cook whose hobby was collecting stamps from battleships posted in port. They thought that sounded a little too interesting. They told the FBI, and the man concerned disappeared one hour before the FBI's appearance. That told me two rather interesting things.
This is very much the kind of problem with which the Minister is forced to grapple, but unfortunately the Bill does not come within 100 miles of addressing it. The Bill is drafted in a style of draftmanship about which I have addressed the House before, the kind of draftmanship which only a weak Parliament could ever have allowed to grow up. Look, for example, at the wording of Clause 2(1):
"The Secretary of State may by order make provision for or in connection with the imposition of transfer controls in relation to technology of any description".
That really is the classic Cambyses clause. The Secretary of State may do whatever he likes. I find it very hard to see what could not be prohibited under those words.
We need to find a way of wording a clause which requires some evidence suggesting guilt in a particular person before the clause comes into force. There is no requirement here to prove the military potential of the information concerned; there is no requirement to show any mens rea in the communicator; there is no requirement to show that the communicator has any suspect record or even any suspect contacts; there is no requirement to show that the person communicating is communicating with a recipient who is suspect. There is no restriction at all on the purposes for which this clause can be invoked. That cannot be right. It must be necessary to show that there is some reason to believe that national security is in danger before the whole hammer apparatus of this clause is brought to bear on restricting the communication.
The Minister offers secondary legislation, but when it comes to reassuring this House with secondary legislation I am afraid that the Government have shot

1119
themselves in both feet and several other portions of their anatomy as well. The White Paper on House of Lords reform proposes that we should lose our power to reject secondary legislation. I have put down a string of questions for Written Answer about negative instruments. In the previous Parliament, 0.5 per cent of them were the subject of division in another place and not one was rejected. So the only possibility for the rejection of a statutory instrument is in this House. If the White Paper were put into effect, that would go. There would then exist the genuine possibility of the Government legislating by decree. If we let a clause such as this go forward, we should have sold our birthright for a mess of regulations.
The existence of the White Paper must influence the way in which this House votes on clauses that create the power to make regulations. So long as that sword of Damocles hangs over us, we cannot consider clauses allowing the Government to make regulations with the degree of trust that we have given them in the past. To allow this clause to go forward, one would need a degree of trust so great that I do not think any parliament should allow it to any Minister in recorded history, even if he or she were the best that there had ever been.
6 p.m.
Lord May of Oxford: My Lords, Oliver Wendell Holmes once memorably said that the right to free speech does not include the right to cry "Fire" in a crowded theatre. I would add that the right to academic freedom does not include the right to light fires in crowded theatres, nor indeed to publicise new and more fearsome ways of doing so.
In short, I fully recognise—and my academic background is as rich and varied as that of anyone in this House —the need for various kinds of restrictions of the type in the Bill. However, lest we inflict greater damage on society than that which we seek to avoid, we need to be especially careful about how we limit free speech. 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 sweepingly general terms. That is why—albeit with less passion than some earlier speakers—I support the spirit of this group of amendments.
That said, I share some of the reservations sketched by the noble Lord, Lord Judd, about the detail of the drafting. Subsection (4), for example, opens unintended loopholes. But the essential point is that amendments proposed by the noble Baroness, Lady Miller, and others go in the right direction in terms of affirming the need for academic exchanges and processes to be unhindered except in limited, defined and exceptional circumstances.
The Government's alternative amendment, Amendment No. 22, although well-intentioned, simply enjoins that the Secretary of State shall,
"avoid any unreasonable restriction on … the making of information generally available to the public; or … the communication of information that has already been made generally available to the public".
1120
I have complete and utter trust in my noble friend Lord Sainsbury, our exemplary Science Minister. I have trust in my erstwhile colleagues—most of them anyhow—in the Department of Trade and Industry. I have particular trust in the current Secretary of State at the DTI, who has the unique virtue of being an Australian. But times change; people come, and people go. So I am unhappy with sweeping primary legislation and an invitation to trust decisions.
Nor is it a philosophical abstraction to distrust the possible consequences of such legislation. In the United States—and I have had personal experience of this during my 11 years as vice-president for research at Princeton University—similar laws, until they were recently changed, have been used, for instance, to impede pure mathematicians publishing work or presenting papers at conferences which were deemed to have possible reference to cryptography.
Admittedly, the Government's Amendment No. 22 means that, if a civil servant sought to impede academic publication or presentation in this way, I could seek judicial review and almost certainly win. I could even enjoy the adventure of invoking the Human Rights Act and going to The Hague en route to publishing the work several years later. What fun! That is scant consolation in terms of those apprehensions. In summary, I support the amendment, despite what I consider to be significant t problems with the drafting, because I believe that its essential principles are clear.
Lord Campbell of Alloway: My Lords, I support the amendment. However, is not the proposal in the Bill to give a Minister of State powers of preview of scientific publications, with powers to regulate, worthy of anathema? I am not an academic, but I have always defended academic freedom. This step does not seen requisite and assuredly goes far too far. It moves towards the inhibition of free trade, not only in goods and services but also in research, opinions and information. We should surely be grateful to those who have tabled the amendment. I shall support it.
Lord Sainsbury of Turville: My Lords, the Government are fully aware of the strength of feeling aroused by the potential effect of the Bill on academic freedom. The noble Baroness is not right in saying that we have paid no attention to what was said in Committee when we are proposing a specific new clause to deal with the concerns expressed. On the basis of careful legal advice, the Secretary of State and I have made clear our view that the provision is compatible with the Human Rights Act. The idea that the Bill is not compatible with human rights legislation is wrong.
Perhaps I may point out that subsections (2)(c) and (d) of Clause 2 do not cover the licensing of students. The clause contains no power to license students, and no such power is contained in the Bill.
I say to the noble Earl, Lord Russell, that in a Bill of this kind it is no good pointing to one clause and saying that under its provisions the Secretary of State can do anything, without pointing also to the restrictions, of

1121
which he will be well aware, contained in Clause 5 and in the schedule. There, it is clearly delineated—for the first time in a Bill of this sort—that restrictions which have been open-ended in the past are in this case firmly tied to a list of categories of goods to be excluded and to areas covered by the schedule. One has to take the Bill as a whole. One cannot simply point to Clause 2 and say that under its terms the Secretary of State can do anything.
The final point that I draw from the debate is that conversations in the corridors may seem attractive, but they do not always convey information with the exactitude that one would wish. Therefore, I shall again set out clearly what we believe to be wrong with the noble Baroness's amendment.
We have listened to the concerns raised and, as a result, have proposed an amendment on the key issue of academic freedom. Our Amendment No. 22 provides, as we were asked to do, on the face of the Bill the protection of the principle of freedom to publish and to communicate information that has already been published.
So I make it absolutely clear that our Amendment No. 22 will make it almost impossible—except in very rare instances, when it can be justified by the Secretary of State—to restrict information that is already in the public domain or is being put in the public domain. I believe that that is what academic freedom is about. Academic freedom is not about allowing—as the proposed new clause would allow—academics secretly to pass information which is not in the public domain to academics in other countries.
Baroness Sharp of Guildford: My Lords, does the Minister recognise that information which is in the public domain is already there and cannot be removed? His proposed new clause is therefore irrelevant in this respect. The vital point is that the process of scientific development and methodology very often requires the exchange of information between academics in different countries before it is published. That is the basis of our concern about academic freedom.
Lord Sainsbury of Turville: My Lords, information is put into the public domain in almost all of the cases of academic freedom that we are discussing. People have frequently said, "The provision will stop us publishing information in a journal. It will stop us presenting a paper at a conference". Those are two examples of information being put in the public domain. However, one must distinguish those examples from situations in which information is passed to a person in another country and is restricted to those two people. I shall come to specific examples of the type of information sharing that Amendment No. 3 would allow. They will, I hope, demonstrate that the amendment would put an enormous hole in the Bill.
I should explain why we have taken this approach, as it will enable me to explain our serious difficulties with the approach proposed by the noble Baroness,
1122
Lady Miller. Our amendment addresses the concerns of the academic community about freedom to publish by requiring 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. Any order under the Bill which attempted to place an unreasonable restriction on publication or communication 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 when necessary to control activities that might cause real harm, such as contributing directly to the development or production of weapons of mass destruction. Moreover, our amendment applies to all persons and all control orders under the Bill, not just to controls under Clauses 2 and 3 or to the academic community, as Amendment No. 10 does.
I believe that the amendment proposed by the noble Baroness, Lady Miller, shares to some extent the same aim as ours. None the less, it would have a number of very damaging consequences that would undermine the Government's ability to maintain a comprehensive and responsible export control regime. I do not believe that that can be the Noble Baroness's intention.
The amendments provide for protection of information being placed in the public domain or already in the public domain. However, it provides exceptions to this only for restrictions,
"required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community".
In fact, many of the international export control regimes to which we belong, such as the Wassenaar arrangement, are political commitments. However, as they are also effectively voluntary arrangements not governed by treaties the proposed exceptions would not apply to them. On the other hand, the amendment would permit restrictions on publication or placing information in the public domain if that were required by international treaties, regardless of whether the proposed restrictions were reasonable.
In contrast, as I hope to explain again in more detail later, the Government's amendment applies to all controls under the Bill including those required by the international regimes. Therefore, in that respect, our amendment—which the noble Baroness, Lady Miller, has described as "feeble"—provides greater protection than does hers. Consequently, in future negotiation of international treaties, UK negotiators will have to consider whether proposed restrictions on freedom of information are reasonable and can be justified.
A consequence of Amendment No. 10 is that its subsection (1)(c) would effectively exempt the academic community from transfer or technical assistance controls entirely, except in so far as they relate to weapons of mass destruction. That would create a significant and unacceptable loophole in the Bill. In fact, we do not intend to introduce any controls on technical assistance other than in relation to weapons of mass

1123
destruction. However, we do intend to introduce controls in Clause 2 on the electronic transfer of military technology whose tangible export from the UK is already controlled and which is not in the public domain or classed as basic scientific research.
It is unlikely that that control will impact much on the academic community, as any academic involvement in the development of controlled military technology is expected to be very limited. Nevertheless, given that international research collaboration involving exchange of controlled military technology between industrial establishments would require a licence, we believe that it would he unjustifiable to allow the same research project to be carried out unlicensed if carried out by an academic establishment.
Yet the amendment would permit any academic to transfer controlled military technology overseas freely. Consequently, any academic involved in military research who, perhaps for political reasons, wished to support an overseas regime, such as the Arab or Israeli side in the Middle East, would be able to transfer technology to one or other regime without hindrance by the legislation.
Such a blanket exemption from export controls for certain groups flies in the face of our efforts to implement an effective export control regime. The Quadripartite Committee in another place concurred with this view, stating in its report on the draft Bill that it saw no case for complete exemption of academic activity from export controls. I cannot believe that noble Lords really wish to allow particular groups to transfer technology which can be used to build conventional weapons or for internal repression or terrorism. I am sure that the industrial community would be troubled to discover that the academic community was trusted to send controlled military technology abroad at will while they were not.
I am amazed that the noble Baroness, Lady Miller, is supporting such an amendment. She must be aware that the above possibility exists as that was the nature of our conversation. I pointed out to her that that would be the effect of her amendments. Subsection (1)(c) of the proposed new clause effectively states that there will be no control on the transfer of information,
"orally or in writing or electronically in the ordinary course of academic teaching or research",
although it does make an exception for nuclear weapons. The amendments would clearly exempt academics from all the Bill's requirements in that regard.
6.15 p.m.
Baroness Sharp of Guildford: My Lords, the provision does not apply only to nuclear weapons—it applies also to chemical and biological weapons. The provision also very clearly states that it will apply,
"unless the person placing or transferring the data knows or ought to have known that such information is or may be intended for use in connection with",
the development of such weapons. Our amendment precisely deals with the Minister's concern.
Lord Sainsbury of Turville: My Lords, of course it makes those exceptions; my point is that all other aspects of military technology would therefore not be covered by the Bill. Consequently, as I said, an academic could transfer such information to other countries without restriction. To have that written into this Export Control Bill, which seeks to stop that kind of military information going abroad, seems to me a complete nonsense. The Liberal Democrat Party has pushed strongly to tighten up the Bill to make it tougher for this technology to go abroad. It has pushed for even tighter restrictions on technology being sent abroad to be used in the way we are discussing. For it then to say that a group of people should not be subject to that control seems to me to make a complete nonsense of the Bill and to go in two completely different directions at the same time.
Subsection (4) of the proposed amendment would also prevent the Government from implementing their proposed controls on weapons of mass destruction in full, and in particular from meeting their commitments enshrined in the European Union Joint Action on technical assistance to weapons of mass destruction programmes agreed in September 2000. A primary purpose of that joint action was to address the question of supply to weapons of mass destruction programmes by persons moving outside the EU.
I turn now to Amendment No. 4. This would prevent the Government from introducing any controls on transfers of technology within the UK where the technology transferred was intended for use outside the UK and would also prevent introduction of controls on transfers of information into the UK where the technology concerned was intended for use outside the UK. Perhaps it may be useful if I begin by explaining why these powers were included in the Bill.
Essentially these provisions are about the export of technology. I think all accept that it is right that an export licence should be required for certain technology such as blueprints and manuals which describe how to build a weapon. Again I think it is generally accepted that if you need a licence to export that technology in physical form, you should also need a licence to export it electronically. But technology—by which essentially we mean knowledge—can also in effect be exported through communications in person. An expert going overseas and drawing up a manual there or directly instructing someone is effectively exporting technology. Again I think that has been accepted as an activity which may be subject to control. But the same expert might communicate exactly the same information to the identical person while in the United Kingdom, or he might telephone that person in the UK while overseas himself. Should that be permitted simply because the location of the individuals is different when exactly the same information is communicated between the same people?
Paragraphs 2(2)(c) and 2(2)(d) of the Bill are included in order to prevent controls being avoided in this way. It is important to note that these paragraphs of the Bill do not provide a general power to control transfers of technology within the UK or from

1125
overseas to the UK. They only allow controls to be imposed where there is reason to believe that the individual transfer in question will result in the technology concerned being used outside the UK. Moreover, like the other controls in the Bill, such controls could only be imposed if required by international obligations or European Community law in relation to military technology, or if they might lead to one of the consequences described in the schedule. Of course, if government Amendment No. 22 is accepted, it will be clear that these powers cannot be used to impose unreasonable restrictions on the publication of information or the communication of information that is already in the public domain.
We recognise that regulating these types of transfers is difficult; that is why we have made clear that the controls we introduce under these provisions in the Bill will be targeted on the areas of greatest concern: namely, weapons of mass destruction and related missile programmes. But we believe that these controls are extremely important in fighting the proliferation of weapons of mass destruction. In fact, these proposals were strongly supported by the Quadripartite Committee in another place, which described them in its report on the draft Bill as "profoundly significant".
It is worth stopping a moment to consider what the effect of removing paragraphs 2(2)(c) and 2(2)(d) from the Bill would be in terms of our proposed controls relating to weapons of mass destruction. A UK citizen might know that he could not legally communicate technology relevant to the development of weapons of mass destruction while abroad to a particular individual because he knew of that person's links to a weapons of mass destruction programme. But he would be free to communicate the same information to that person if that person came to the UK. He might do that either in person or by communicating with the proliferator from abroad. I feel sure that the noble Baroness's intention is not to create that kind of loophole.
In conclusion, these amendments would have severe consequences for the Government's proposed controls. The controls set out in the draft dummy orders published last October on the transfer of technology for use in connection with weapons of mass destruction programmes—with which Universities UK has said it is happy—could not be introduced. Neither could our proposed controls on electronic transfers of military technology be introduced in full. The Government simply cannot accept an amendment which would create such huge loopholes in the proposed legislation. An effective export control regime inevitably involves imposing restrictions on certain activities. Although I emphasise that we anticipate the impact on the academic community of these restrictions to be minimal, we maintain strongly that they are necessary.
It is nevertheless possible to provide effective protection for freedom to publish and communicate information in the public domain on the face of the Bill, and Amendment No. 22 will do that. We believe that our amendment strikes the correct balance
1126
between the need to protect academic freedom and the need for an effective export control regime. I therefore invite the noble Baroness to withdraw her amendment.
Baroness Miller of Hendon: My Lords, my amendment may not be perfect but it could certainly be put right at Third Reading. That would be the appropriate thing to do. The issue of academic freedom is a strong one and I have laid my wares on the table. There is no point in saying anything further. I wish to test the opinion of the House.
6.27 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 150; Not-Contents, 108.

Division No. 2

CONTENTS

Aberdare, L.

Fookes, B.

Ackner, L.

Freeman, L.

Addington, L.

Garel-Jones. L.

Alderdice, L.

Geddes, L.

Allenby of Megiddo, V.

Glenarthur, L.

Ampthill, L.

Glentoran, L.

Anelay of St Johns, B.

Goodhart, L.

Arran, E.

Goschen, V.

Astor of Hever, L.

Gray of Contin, L.

Attlee, E.

Griffiths of Fforestfach, L.

Baker of Dorking, L.

Hambro, L.

Barker, B.

Hamwee, B.

Blatch, B.

Harris of Richmond, B.

Bledisloe, V.

Hayhoe, L.

Boardman, L.

Henley, L.

Bowness, L.

Higgins, L.

Brabazon of Tara, L.

Holderness, L.

Bradshaw, L.

Howe, E.

Bridgeman, V.

Howe of Aberavon, L.

Bridges, L.

Howe of Idlicote, B.

Brightman, L.

Howell of Guildford, L.

Brooke of Sutton Mandeville, L.

Hunt of Wirral, L.

Brougham and Vaux, L.

Jacobs, L.

Bumham, L.

Jellicoe, E.

Burns, L.

Jenkin of Roding, L.

Buscombe, B.

Kingsland, L.

Butler of Brockwell, L.

Listowel, E.

Byford, B.

Liverpool, E.

Caithness, E.

Lucas, L.

Campbell of Alloway, L.

Luke, L.

Chadlington, L.

Lyell, L.

Chan, L.

McColl of Dulwich, L.

Clement-Jones, L.

MacGregor of Pulham Market, L.

Colwyn, L.

Cooke of Thorndon, L.

Mackay of Clashfem, L.

Cope of Berkeley, L. [Teller]

McNally, L.

Craigavon, V.

Mancroft, L.

Crickhowell, L.

Marlesford, L.

Cumberlege, B.

May of Oxford, L.

Darcyde Knayth,B.

Mayhew of Twysden, L.

Dholakia, L.

Miller of Hendon, B.

Dixon-Smith, L.

Monro of Langholm, L.

Eden of Winton, L.

Monson, L.

Elliott of Morpeth,L.

Montrose, D.

Erroll, E.

Mowbray and Stourton, L.

Falkland, V.

Moynihan, L.

Feldman, L.

Murton of Lindsfame, L.

Ferrers, E.

Naseby, L.

Flather, B.

Neill of Bladen, L.

1127

Noakes, B.

Sharp of Guildford, B.

Northesk, E.

Shaw of Northstead, L.

Northover, B.

Sheppard of Didgemere, L.

Norton of Louth, L.

Shutt of Greetland, L.

Oakeshott of Seagrove Bay, L.

Skelmersdale, L.

Palmer, L.

Stem, B.

Perry of Southwark, B.

Stewartby, L.

Pilkington of Oxenford, L.

Strange, B.

Plummer of St. Marylebone, L.

Strathdyde, L.

Razzall, L.

Swinfen, L.

Reay, L.

Tebbit, L.

Redesdale, L.

Thomas of Gresford, L.

Rees, L.

Thomas of Gwydir, L.

Rennard, L.

Thomas of Swynnerton, L.

Renton, L.

Thomas of Walliswood, B.

Tope, L.

Roberts of Conwy, L.

Trefgarne, L.

Rodgers of Quarry Bank, L.

Trumpington, B.

Roper, L.

Vincent of Coleshill, L.

Rotherwick, L.

Vivian, L.

Russell, E.

Walpole, L.

Saatchi, L.

Warnock, B.

St. John of Bletso, L.

Wilberforce, L.

Sandwich, E.

Wilcox, B.

Scott of Needharn Market, B.

Williams of Crosby, B.

Seccombe, B. [Teller]

Williamson of Horton, L.

Sharman, L.

Wilson of Tillyorn, L.

NOT-CONTENTS

Acton, L.

Grabiner, L.

Ahmed, L.

Graham of Edmonton, L.

Alli, L.

Grocott, L.

Amos, B.

Harris of Haringey, L.

Andrews, B.

Harrison, L.

Archer of Sandwell, L.

Haskel, L.

Ashton of Upholland, B.

Hayman, B.

Bach, L.

Hilton of Eggardon, B.

Bassam of Brighton, L.

Hollis of Heigham, B.

Berkeley, L.

Howells of St. Davids, B.

Bernstein of Craigweil, L.

Howie of Troon, L.

Billingham, B.

Hoyle, L.

Blackstone, B.

Hughes of Woodside, L.

Borrie, L.

Hunt of Kings Heath, L.

Brennan, L.

Irvine of Lairg, L. (Lord

Brooke of Alverthorpe, L.

Chancellor)

Brookman, L.

Jay of Paddington, B.

Campbell-Savours, L.

Joffe, L.

Carter, L. [Teller]

Judd, L.

Chandos, V.

Layard, L.

Christopher, L.

Lea of Crondall, L.

Clark of Windermere, L.

Levy, L.

Clarke of Hampstead, L.

Lipsey, L.

Clinton-Davis, L.

Macdonald of Tradeston, L.

Corbett of Castle Vale, L.

McIntosh of Haringey, L.

Crawley, B.

[Teller]

Currie of Marylebone, L.

McIntosh of Hudnall, B.

David, B.

MacKenzie of Culkein, L.

Davies of Coity, L.

Mackenzie of Framwellgate, L.

Davies of Oldham, L.

Massey of Darwen, B.

Dean of Thornton-le-Fylde, B.

Merlyn-Rees, L.

Desai, L.

Milner of Leeds, L.

Dormand of Easington, L.

Mishcon, L.

Evans of Temple Guiting, L.

Mitchell, L.

Evans of Watford, L.

Morris of Aberavon, L.

Falconer of Thoroton, L.

Morris of Manchester, L.

Farrington of Ribbleton, B.

Nicol, B.

Faulkner of Worcester, L.

Pendry, L.

Filkin, L.

Pitkeathley, B.

Fyfe of Fairfield, L.

Prys-Davies, L.

Gale, B.

Ramsay of Cartvale, B.

Gibson of Market Rasen, B.

Rea, L.

Gilbert, L.

Rendell of Babergh, B.

Golding, B.

Richard, L.

Gordon of Strathblane, L.

Sainsbury of Turville, L.

Gould of Potternewton, B.

Sawyer, L.

1128

Scotland of Asthal, B.

Turner of Camden, B.

Serota, B.

Uddin, B.

Sewel, L.

Walker of Doncaster, L.

Simon, V.

Weatherill, L.

Smith of Gilmorehill, B.

Whitaker, B.

Stone of Blackheath, L.

Whitty, L.

Wilkins, B.

Symons of Vernham Dean, B.

Williams of Mostyn, L. (Lord Privy Seal)

Temple-Morris, L.

Thornton, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.37 p.m.
Baroness Miller of Hendonmoved Amendment No.4:
Page 2, line 12, leave out paragraphs (c) and (d).
On Question, amendment agreed to.
Lord Sainsbury of Turvillemoved Amendment No.5:
Page 2, line 23, leave out "An order under this section may" and insert "The Secretary of State may by order"
On Question, amendment agreed to.
Clause 3 [Technical assistance controls]:
Baroness Miller of Hendonmoved Amendment No. 6:
Page 2, line 37, at beginning insert "Subject to the provisions of section (Academic Freedom),"
On Question, amendment agreed to.
Lord Sainsbury of Turvillemoved Amendments Nos. 7 to 9:
Page 3, line 13, leave out "this section" and insert "subsection (1)"
Page 3, line 19, leave out "An order under this section may" and insert "The Secretary of State may by order"
Page 3, line 22, leave out "Controls may be imposed under this section" and insert "Technical assistance controls may be imposed"
On Question, amendments agreed to.
Baroness Miller of Hendonmoved Amendmert No. 10:
After Clause 3, insert the following new clause—
"ACADEMIC FREEDOM
(1) Unless any form of restriction is permitted under or by virtue of any other Act, or is required by any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community, an order made under section 2 or 3 of this Act may not impose any control on—

(a) any information already in the public domain anywhere in the world (whether or not it is the subject of any patent, copyright, or other form of protection for intellectual property);

(b) the placing of any information in the public domain by publication orally or in writing or electronically (including for the purposes of a patent copyright or other form of protection of intellectual property); or

(c) the transfer of any information orally or in writing or electronically in the ordinary course of academic teaching or research unless the person placing or transferring the data knows or ought to have known that such information is or may be intended for use in connection

1129
with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological, or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles or other unmanned vehicles or other devices capable of delivering such weapons.

(2) Nothing in this section affects the powers of the Comptroller-General under section 22 of the Patents Act 1977 (c. 37) (secrecy directions) or any statutory modification or reenactment thereof which otherwise affects any obligation imposed by any other enactment or at common law relating to the secrecy of official information.
(3) Nothing in subsection (1) restricts the application of transfer or technical assistance controls to the transfer of any information to a person who, or a place which, is outside the European Community by a person who knows or ought to know that the information in question is or may be intended for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles or other devices capable of delivering such weapons.
(4) An order made under section 2 or 3 of this Act may not apply to the supply of services or the transmission of technology if that supply or transmission involves the cross border movement of natural persons."
On Question, amendment agreed to.
Clause 4 [Trade controls]:
Lord Sainsbury of Turvillemoved Amendments Nos. 11 and 12:
Page 4, line 1, leave out "An order under this section may" and insert "The Secretary of State may by order"
Page 4, line 9, leave out from "section" to end of line 10.
On Question, amendments agreed to.
Lord Razzallmoved Amendment No. 13:
Page 4, line 18, leave out "may" and insert "shall"
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 14. The amendments relate to our simple debate in Committee about whether the Government are honouring in the Bill the commitment in the Labour Party manifesto at the last election that the new export control legislation would,
"control the activities of arms brokers and traffickers wherever they are located".
My submission in Committee was that the Bill as drafted does not currently live up to that commitment. I would like to develop that argument further. It is obviously not for me to defend the Government or explain why they are not living up to their manifesto commitment.
I believe that the importance of this issue has been demonstrated more recently by events in Zimbabwe. Paul Farrelly, who, in a former life, was the City editor of the Observer and is now the Member of Parliament in another place for Newcastle-under-Lyme, has discovered two very recent cases of extraterritorial arms brokering by UK individuals or companies, both relating to Zimbabwe. In one case, quite a well known UK-based arms dealer has been identified as the main supplier of arms to Mr Mugabe in Zimbabwe, and he brokers those arms extraterritorially. He would not be
1130
captured by the Bill as currently drafted. The second example discovered by Paul Farrelly shows that it is clear that spare parts for Hawk fighters have been shipped to Kenya and then re-routed to Zimbabwe. We understand that those transactions would not be caught by the Bill as currently drafted.
The Government's position, as clearly set out by the Minister in Committee, is that they will bring in regulations to implement the extraterritorial nature of the Bill. But the dummy orders that have been published, and the Government's stated intention, indicate that full extraterritorial controls on brokering will be imposed only for deals involving transfers to embargoed destinations, transfers of equipment used in torture or transfers of long-range missiles. That is the Government's position.
From these Benches we take the view that that does not go far enough. We believe that arms brokering in general—not limited to the three categories to which the Government have indicated they are prepared to extend the controls—meets at least five of the six Home Office criteria for determining whether extraterritorial legislation is appropriate. We made that point in Committee but the Government do not accept it. The substantive argument put forward by the Government is that, if the proposal, as set out in this group of amendments, were put into law, vulnerable individuals would be sitting brokering arms outside the United Kingdom and would not be aware that their activities were making them liable to criminal penalties in the United Kingdom. In Committee, that was the substance of the Government's defence. I find it an extremely thin argument.
I believe that anyone who has any connection with the United Kingdom and is involved in the arms-brokering business must be aware —if he is not, he should be—that extensive controls are applicable. I find it very difficult to accept the argument that the extraterritorial nature of these controls should not apply to arms dealers in transactions wherever they are located. For that reason, I commend the amendment.
6.45 p.m.
The Lord Bishop of Manchester: My Lords, I am pleased to speak to Amendments Nos. 13 and 14. I, like many others who are in touch with voluntary organisations throughout the world, am concerned about the apparent ease with which arms, large and small—I include both—are transferable throughout the globe.
I am glad that the UK Government have taken such a leading role within the European Union in pushing for a legally binding convention on arms brokering. That is good and to our credit. I thank them for that. However, it is important that we in the UK put our own house in order. The most vulnerable groups of people in places such as, to quote an area that I know well, central Africa—that is, many of the poor and the powerless, including many women and children—continue to suffer as the result of arms made available through arms brokering. Some such activity is conducted by UK citizens and some by people who are not UK citizens but who are resident in the UK.

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Therefore, it is good that the Bill seeks to address the problems created by arms brokering by dealing with arms brokering itself. However, it is hard to understand why Her Majesty's Government are reluctant to assist in and ensure the exercise of extraterritorial jurisdiction of UK arms brokers. That is very puzzling.
As we all know, the precedent for the exercise of extraterritorial jurisdiction already exists. There is no legal impediment to creating fully extraterritorial legislation. As recently as January this year, the Government placed full extraterritorial controls on corruption offences as part of the Anti-terrorism, Crime and Security Act, ensuring jurisdiction over nationals for offences of corruption committed abroad. That seemed to be eminently sensible, necessary and wise.
Therefore, in some areas this Government are willing to make provision for extraterritorial control but they seem to be reluctant to do so in this Bill. Why cannot similar action be taken with regard to the brokering of arms and with regard to people who, while not being terrorists themselves, are equally resourceful, cunning and deceitful and enable others to engage in activities which are unhelpful towards human flourishing? There seems to be a loophole here for those who deal with non-embargoed countries. One could name some, such as Pakistan, Indonesia and Syria. The loopholes allow for deals to be made off-shore, and those loopholes need to be closed.
I am told that the military procurement documents discovered in the Democratic Republic of Congo, formerly Zaire, show that in the midst of the genocide there—I understand that 3 million people died in five years in that country—arms which originated from Albania and Israel were secretly flown to Zaire. At the time, Zaire was not an embargoed destination. From Zaire, it is a short and easy journey for the arms to reach embargoed Rwanda. Documents later found in the secret military archive of the exiled Rwandan government highlighted the central role played by a UK company in brokering those deals.
Arms brokers, such as a UK company which I shall not name, contributed to the carnage but have not yet faced persecution. As I understand it, under the present Export Control Bill, as it stands, they will remain unlicensed, unregulated and legal. I speak having met four African bishops from the Congo, Rwanda and that part of central Africa in the past 10 days. They have to live with the consequences of arms brokering as it is currently allowable. I hope that we shall support these amendments.
Lord Judd: My Lords, I am very glad that the right reverend Prelate made those remarks about what happened in Rwanda because it is a sad and ghastly story. I agree with him that we shall all be condemned in history for our failure to have faced up to it adequately. However, I want to thank the noble Lords, Lord Redesdale and Lord Razzall, for having introduced the amendment after, if I may say so, their aberration on the academic amendment which we have just debated. I believe that this amendment achieves
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the purpose which they seek and which I applaud; that is, to help my noble friend the Minister in strengthening the Bill. I do not believe that the amendment on academic freedom did anything to assist in that regard.
In arguing the case, I want to emphasise several points. First, we must recognise that there is increasing evidence that arms brokers are one of the main suppliers of weapons to conflict zones. I, for one, was glad and proud when my party—the Labour Party— said in its manifesto, exactly as the noble Lord, Lord Razzall, reminded us, that its pledge was,
"to control the activities of arms brokers and traffickers wherever they are located".
That was the manifesto. The pledge is not reflected in this Bill.
In a recent opinion poll commissioned by the UK working group on arms, 80 per cent of those questioned agreed that the Government should honour their manifesto commitment and introduce controls on UK arms brokers, whether they operate in the UK or overseas. However, despite the fact that the Bill gives the Government the power to control UK brokers wherever they are located, they only selectively propose to take that power in the dummy orders for secondary legislation. That is a damaging loophole. UK dealers could simply cross over to Paris or Dublin to do a deal and so evade British controls. The point has been argued before but needs repeating. It is important to amend the Bill to ensure that trade controls comprehensively apply to UK dealers operating overseas.
As I recall, my noble friend argued in Committee that according to Home Office criteria extra-territorial controls are justified only to prevent arms brokers supplying weapons to countries under a UN, a European Union or a UK embargo or supplying torture equipment and long-range missiles. Matrix Chambers appears to be quoted fairly freely in our debates and appears to have been active in regard to this legislation. I have seen legal advice from Matrix Chambers that disagrees with that interpretation and says that arms brokering meets five of the six Home Office criteria, reminding us that only one has to be met for legislation to be appropriate. There are many cases where it is vital to control supplies of conventional weapons to countries that are not under an arms embargo.
Perhaps I may give a hypothetical example, which in current circumstances could all too easily be a real example. Consider the case of a UK broker who wanted to organise the transfer of fighter jets, combat helicopters and small arms to Israel, knowing that they would be used against Palestinian civilians in the West Bank. He would be unhindered by the current proposals if his activities were carried out overseas as Israel is not under an arms embargo. The Foreign Secretary confirmed on Tuesday in the other place—it was welcomed by all—that controls on direct UK exports to Israel have been strengthened as a result of the worsening situation in the Middle East and the unauthorised use by the Israeli armed forces of British tanks in the Occupied Territories. In those

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circumstances, can it be right that a British arms broker would be able to supply weapons that it now seems the Government would no longer export directly? The lack of full extra-territorial controls on arms brokers means that UK dealers will be free to undermine our own foreign policy.
The Government have also raised practical issues about enforcement. I hope that my noble friend will forgive me if I remind him that in other areas of legislation—the recent Anti-terrorism, Crime and Security Act 2001, the Misuse of Drugs Act 1971, the Chemical Weapons Act 1996, the Sex Offenders Act 1997 and the Landmines Act 1998—the Government have weighed up the issues and decided that the deterrent effect and the status of the United Kingdom in the international community mean that extraterritorial controls should be introduced. Surely, if it was appropriate in those circumstances, those arguments apply equally to arms brokering.
I conclude by asking specific questions of my noble friend. Does the Minister agree that it will undermine UK foreign policy if arms brokers are able to move overseas and engage in arms deals that would not be licensed directly from the UK? Does the Minister agree that extra-territorial controls would serve as a deterrent effect and prevent our driving this illegitimate, nasty and cruel trade overseas? Surely, it would reinforce our welcome new emphasis on conflict prevention and resolution in Africa if we took all possible steps to prevent British citizens supplying the weapons that often fuel the fighting.
The Earl of Sandwich: My Lords, the noble Lord, Lord Judd, has given me the courage to mention Israel. The need to tighten our export controls, including arms brokering, has come into sharp focus with the revelation that the Israel defence force has, all along, been in breach of undertakings that British military equipment would not be used in the Occupied Territories. Our military attaché in Israel has evidence, quoted this week by the Foreign Secretary, that British armoured personnel carriers have been used in the Occupied Territories. Perhaps we should not be surprised. Therefore, it is quite possible that Britain is unknowingly assisting the present appalling attacks on Jenin, Ramullah and Bethlehem, which have been widely condemned this week in another place.
That shows that the Bill is essential. We must have proper monitoring controls. I believe that in 2000 we sold £12.5 million worth of military equipment to Israel. Israel is also an importer of our production equipment for ammunition. Along with India, Kenya, Pakistan and Sri Lanka, it is a country known to be involved in conflict and yet continually imports from the United Kingdom.
The right reverend Prelate has said, better than I, that there are already extra-territorial controls and the noble Lord, Lord Judd, quoted the examples of controls relating to drugs, chemical weapons and sex offenders and the Landmines Act. There are clear criteria—I shall mention two—on which there is international consensus that certain conduct is
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reprehensible and that concerted action, involving the taking of extra-territorial jurisdiction, is needed. One example is the UK Government taking a leading role in the recent convention of arms brokering at the UN conference. Another point is that the vulnerability of the victim makes it particularly important to tackle offences.
That is of particular interest to aid organisations. Quite rightly, Rwanda has been mentioned by the right reverend Prelate. Arms brokering in war zones or in places where law and order is breaking down means that the victims of brokering are frequently innocent civilians. They comprise an estimated 80 per cent of all casualties in conflicts. Too often they are women and children.
The Government have given another reason for not proceeding—lack of resources. I would be grateful for clarification from the Minister. We know that the Government have announced an additional £90 million for law enforcement to tackle organised crime, including the combating of drug trafficking. Now is not the time to go into the connections, but they are clear. Trafficking in arms, drugs and humans are typically interconnected because criminals use established routes to branch out into different commodities. I gather that the likely extra costs associated with the recommendations in this amendment would be small by comparison, although one has sympathy with governments looking for extra resources in any event. For those reasons I strongly support the amendment.
7 p.m.
Lord Brennan: My Lords, I have an interest to declare as a member of Matrix chambers. I do not have the distinction of having signed the advice which was referred to a few moments ago, although I am sure that had I read it, I would have found its logic and the appropriateness of conclusions compelling.
I rise as a Back Bencher to seek reassurance from the Government. Their manifesto commitment has been mentioned and it is appropriate, as the Bill draws to its close in this House, that my noble friend the Minister should give that reassurance in three areas.
First, it has been my experience, like that of the right reverend Prelate, that the oppression which many people in various parts of the developing world suffer is caused by the use of small arms, not major weaponry. Something must be done, rather than washing our hands and saying that it is too difficult a problem to cope with. It is a permanent practical problem. How do we control small arms brokering which feeds oppressors?
Secondly, on a different but related topic, if the Bill is not to control arms brokering by UK citizens abroad, how does its purpose fit into the scheme of a world-wide campaign against terrorism? The logic that we should embrace united campaigns to trace the funds that finance terrorism and join in a coalition on every front is difficult to follow when any ordinary citizen would choose the option of stopping people getting weapons as his first objective. If such controls

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are not in this Bill, what are the Government doing to stop arms brokering activity in the fight against terrorism?
Thirdly, my last appeal for reassurance deals with controlling the self-interest of nations. I read in the information on the debate that was sent to us that the United States controls by law the brokering activities of US citizens abroad. It has no difficulty with so-called problems of extraterritoriality. I also read that neither we nor Germany have such controls. Perhaps that includes other countries of the European Union. A few months ago we were called upon to join Europe in framework decisions for a common arrest warrant, and for the campaign against terrorism to be advanced by Europe. Please may we have reassurance that the Government are pushing the European Community member states to ensure that individually they do not destroy the common wish of the whole, which is that the brokering of arms should not be supported?
In seeking that reassurance, I commend the Government on their general objectives. An ordinary person considering the Bill will ask whether it will stop people getting round arms control. Getting on an aeroplane or living abroad is getting round such controls. How will that be stopped? My questions are designed to be constructive and I await the reassurance that many of us are looking for.
Lord Sainsbury of Turville: My Lords, I begin by pointing to the irony of the situation. We have just passed an amendment that will allow someone, because he is an academic, to export the blueprint instructions on how to make cluster bombs, electric shock batons, or indeed, military equipment to Zimbabwe and many other countries with an appalling human rights record. That is within our control to stop.
We are now moving on seamlessly to try stop something that has real practical difficulties in foreign countries.
Baroness Blatch: My Lords, what is the Bill on antiterrorism about if it is not about inciting terrorism by the very acts that the Minister has described?
Lord Sainsbury of Turville: My Lords, this has nothing to do with acts of terrorism. I was talking about blueprints on cluster bombs and other activities. That is exactly what the Export Control Bill will control. If that is not clear to everyone, I do not know why we are spending such a long time debating the Bill. We have just made a large hole in the Bill by saying that if someone is an academic, he can export blueprint instructions on how to make cluster bombs, electric shock batons—they have nothing to do with acts of terrorism—and any military equipment.
Baroness Miller of Hendon: My Lords, the Minister is not explaining the position. That is not what the amendment does. The noble Lord is also shaking his head. My amendment may not be perfect, but we took
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legal advice, too, and it certainly was not intended to do any of the things suggested. It was intended to protect academic freedom.
Lord Sainsbury of Turville: My Lords, if I am wrong I stand corrected, but that is the clear advice that we were given.
Lord Razzall: My Lords, I thought that I was proposing an amendment regarding arms brokering. We have now heard the Minister addressing his remarks to the noble Baroness, Lady Miller, on a subject that has nothing whatever to do with my amendment. I did not add my name to the previous amendment, so the Minister might do me the courtesy of responding to my amendment rather than entering into badinage with the noble Baroness.
Lord Sainsbury of Turville: My Lords, I was merely pointing out that there is a curious context in which the amendment is being debated. I do not know whether the noble Lord, Lord Razzall, voted for the previous amendment, but I merely point out that it suggests curious behaviour. There was a vote for one amendment to allow what I described and now we are proceeding to try to tighten up the Bill.
I shall now turn to the noble Lord's amendment.
Lord Razzall: My Lords, the Minister's behaviour is equally curious. That commitment was in the Labour party's manifesto, so why is it not being honoured now? If that is how debates are conducted in this House, it is not the place I thought it was.
Lord Sainsbury of Turville: My Lords, I am happy to discuss the noble Lord's amendment and deal with that issue. I wanted to put the debate in context so that people would be clear where we stood. Inevitably in such debates, attention is focused on those aspects of the proposed legislation that your Lordships want to change. That is, of course, right, but I remind the House of the great step forward that the Bill represents with regard to the control of the arms trade, as it is relevant to the debate on the amendments.
The Bill will enable the Government to introduce national controls on trafficking and brokering for the first time. The powers in Clause 4 are extensive and will allow us to introduce controls extraterritorially. We shall be using those powers to introduce controls that apply extraterritorially on trafficking and brokering of torture equipment, long-range missiles and arms to embargoed destinations. If the controls on embargoed destinations were in place today they would apply to trafficking and brokering in arms to 16 countries as well as to Al'Qaeda and Taliban terrorists. Controls on torture equipment, long-range missiles and trafficking to embargoed destinations reflect the proposals set out in our 1998 White Paper. In a significant addition, in response to the White Paper consultations, we decided to go still further and introduce controls on the trafficking and brokering from the UK of all weapons and other military equipment to any destination.

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The amendment proposed by the noble Lords, Lord Razzall and Lord Redesdale, would, as we have heard, provide that any trade controls introduced by the UK Government must apply extraterritorially. Before I discuss the substantive issue of the scope of the extraterritorial controls to be introduced under the Bill, I point out that the Bill gives the Government the power to apply any trade controls extraterritorially. In that sense, it meets all our commitments as a political party.
At the same time, because we put in clear regulations the Bill focuses on the areas in which we believe we can take practical action. The terrorist action is covered by the anti-terrorism legislation, which has another set of criteria here. Perhaps I can also say to my noble friend Lord Brennan that, while the United States has legislation on extraterritoriality, it is not true to say that they find it easy to control the situation; in fact they find it extremely difficult and it leads to many problems.
The general approach of the Bill is to give the Government the powers we need for a comprehensive export control regime that is flexible enough to allow us to respond to changing circumstances, such as new international commitments, while of course setting limits, as the Bill does in Clause 5 and the schedule. We believe that is right in principle. For that reason alone we cannot support amendments that would prescribe the scope of detailed controls.
I turn to the question of the scope of the new controls that we announced we would introduce under the Bill. One of our principal arguments against extraterritorial jurisdiction for the proposed controls on all military equipment to any destination is that that would risk criminalising the involvement of UK nationals settled overseas in the legitimate export of defence equipment from their countries of residence. The amendments would mean that any controls introduced on trade in all military equipment to any destination would apply extraterritorially.
It has been suggested that it would be entirely reasonable to expect a UK citizen abroad to be aware of the seriousness of the offence of deliberately attempting to evade controls on arms brokering, carrying as it would a sentence of up to 10 years' imprisonment. But trade in military equipment carried out in accordance with the laws of the exporting country may well be perfectly legitimate. Typically, over 97 per cent of licences for exports of items on the UK's military list are granted because the export would be consistent with our announced consolidated criteria.
Similarly, the majority of trade in military equipment is likely to constitute legitimate trade. Whereas it is reasonable to expect a UK citizen abroad to suspect that he may be contravening the laws of his country if he supplies arms to an embargoed destination or supplies torture equipment or long-range missiles, it is not necessarily reasonable to expect a UK citizen abroad to know that an export of military
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equipment from his country of residence to a non-embargoed destination, carried out according to the laws of the exporting country, required a licence from the UK Government.
We believe that the right way to deal with the concerns raised is to encourage international cooperation. The Government will continue—this answers the point of my noble friend Lord Brennan—to press for international embargoes to be imposed on countries in regions of conflict. That is the best way to stop the supply of arms to those regions.
We supported the recently adopted European Union statement of principles on controlling arms brokering and we take every opportunity to encourage the growing international consensus on the need for controls in that area. For example, both the UN Firearms Protocol adopted in May last year and the conclusions of the UN conference on "Illicit Trade in Small Arms and Light Weapons in all its Aspects" in July recognised the need to enhance international cooperation in preventing, combating and eradicating illicit brokering.
Therefore I do not accept the principle that the action we are taking in any way undermines our foreign policy. It fits into that policy because it is a practical set of actions on which we can deliver in the future. The real difficulties are the practical ones over and above those of costs. So for the reasons I set out it would be wrong to take the prescriptive approach of these amendments.
Lord Judd: My Lords, before my noble friend sits down, perhaps I can put this to him. He put to the noble Lord, Lord Razzall, that there was a paradox between taking the position which the Liberal Democrats took on academic freedom, and then taking the stance that they are taking on brokering. Perhaps I can in all friendship say to my noble friend that there is a paradox between taking the line which he and I took together on academic freedom and the need to infringe academic freedom—a significant thing to do in Britain—and then refusing to do anything about these reprehensible characters who carry on their trade overseas and evade control.
Lord Sainsbury of Turville: My Lords, I do not believe there is a paradox. There is a comparison to be made. The great difference is that one is easily within our control in the UK. We can control it and the situation is very clear. But these amendments involve trying to control something in far distant places where we could criminalise perfectly innocent people going about their jobs. I do not find that a paradox, though a parallel can be drawn between the two situations. I trust the noble Lord, Lord Razzall, will withdraw his amendment.
7.15 p.m.
Lord Razzall: My Lords, I listened carefully to the Minister's response, particularly the last part. I share the concerns of the noble Lord, Lord Judd, that the Minister did not answer the fundamental question of how the sorts of activities that were described by all

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sides of the House as being of significant concern will be dealt with by the Bill. He appears to suggest that the only way to do it is by international co-operation. I will make a prediction: if that is the way Her Majesty's Government propose to do it, we shall be here in 30 years still debating the issue. It will always be easy to find rogue states that are not imposing embargoes on arms distribution under which unscrupulous UK citizens who wish to broker arms can do so without penalty. So international co-operation, I fear, will not be the answer.
I am also unpersuaded by the Minster's argument that it would be unfair for the UK citizen. The image of the poor UK citizen who is sitting somewhere in the world in one of the other countries and is not aware that Her Majesty's Government have controls over this activity does not persuade me, particularly when we look at the other offences we expect UK citizens to be aware of. However, I shall read the Minister's response in Hansard carefully and come back to this matter at Third Reading, after discussion with colleagues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Lord Joffemoved Amendment No. 15:
After Clause 4, insert the following new clause—
"TRADE CONTROLS: ACTS OUTSIDE THE UNITED KINGDOM
(1) This section applies if—

(a) a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United Kingdom, and

(b) the act would, if done in the United Kingdom, constitute a trade control offence (as defined below).

(2) In such a case—

(a) the act constitutes the offence concerned, and

(b) proceedings for the offence may be taken in the United Kingdom.

(3) For the purposes of this section, trade control offences are—

(a) the acquisition or disposal, the movement or activities which facilitate or are otherwise connected with the acquisition, disposal or movement of—

(i) missiles capable of a range of 300km or more, and specifically designed components therefor; or

(ii) any "equipment" falling within PL5001 paragraph (c) or (g) of the Military List;

(b) any unlicensed—

(i) acquisition or disposal;

(ii) movement; or

(iii) activities which facilitate or are otherwise connected with the acquisition, disposal or movement,

of small arms and light weapons, and ammunition for small arms and light weapons.
(4) Other acts done outside the United Kingdom and the Isle of Man may also be defined as trade control offences, but only if they are done by a person who is, or is acting under the control of, a United Kingdom person."
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The noble Lord said: My Lords, Amendment No, 13 sought to apply controls to a very wide range of goods. Amendment No. 15 limits its application to small arms, light weapons and ammunition. In so doing, it aims to meet the concerns expressed by the Minister in Committee, and indeed this evening, that it is impractical to apply controls to a wide range of goods, some of which are equally capable of civilian use.
For the sake of uniformity, the amendment also includes the three categories which the Government intend to control extraterritorially: long-range missiles, instruments of torture and goods to embargoed destinations. In brief, despite its lengthy wording, the amendment seeks to add small arms, light weapons and ammunition to those three categories.
As the Bill stands, controls on the extraterritorial brokering of small arms and light weapons apply only where part of the transaction takes place in the United Kingdom. The means of evading those controls are, accordingly, so self-evident that it is difficult to avoid the conclusion that there is no serious intention by the Government to impose extraterritorial controls on any goods other than the three categories expressly mentioned.
As Roger Berry, MP, the chair of the Quadripartite Select Committee, stated,
"A child of 5 could work out an easy way to avoid the restrictions. You hop on the Eurostar and shake hands in Lille".
Indeed, UK-based small arms dealers could not have asked for more. The Bill produces extraordinary consequences. While arms dealers based in the UK cannot export British-manufactured small arms without a licence, all they need to do is take the Eurostar to France and there they can, legally under UK law, traffic in Russian-manufactured small arms and weapons to their heart's content. It is a curious result.
As I understand the situation, the Government choose not to apply extra-territorial controls to small arms and light weapons for three reasons, none of which I suggest stand up to critical analysis. In order to analyse these reasons I fear that I shall need to detain your Lordships a little longer than I— or I am sure noble Lords—would wish.
The first reason relates to the six criteria about which we have already heard, published by the Home Office in 1996 recommending that the extension of jurisdiction could be considered in certain circumstances where at least one of the criteria was present. The Government have selected the third of these criteria, and possibly the second, on which to base their opposition and have conveniently ignored the other criteria, each one of which would justify consideration.
The third criterion on which the Government rely is where international consensus exists that certain conduct is reprehensible and that concerted action is needed. They appear to contend that there is no international consensus that the brokering of small arms and weapons is reprehensible.

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In practice, however, there is a growing international consensus that brokering is in urgent need of international regulation. No one knows that better than the UK Government, who, to their credit, are taking a leading role in pushing for a legally binding convention on arms brokering, both within the EU and the UN.
It is hardly open to this Government, who are leading the way on the international control of small arms, to contend that because a handful of countries do not yet support such controls there is no international consensus and that that precludes them from effective controls legislation.
However, even if there were not such international consensus it is not correct that extra-territorial legislation is justified only in such cases. One needs to look no further than this year's Anti-terrorism, Crime and Security Act where the Government legislated that bribery and corruption committed outside the United Kingdom constituted an offence, even though in some jurisdictions this activity is not criminalised. Similarly, the Government have extended jurisdiction extra-territorially for the brokering of torture equipment, even though some of their European Union partners do not control the export of such equipment.
The second reason advanced by the Government is the difficulty of enforcement. While it is clear that enforcement in relation to extra-territorial activities is not easy, mechanisms will in any event have to be established to enforce controls on the three categories in respect of which the Government already propose to apply extra-territorial controls. These same systems can obviously be adapted and utilised in order to control the brokering of small arms, ammunition and light weapons. Can the Minister in his response explain why, if the Government can enforce controls on missiles, torture instruments and goods to embargoed countries, they cannot also enforce controls on small arms, light weapons and ammunition?
It is instructive that in January 2002, as I have said, the Government placed full extra-territorial controls on corruption offences as part of the Anti-terrorism, Crime and Security Act 2002. In the Home Office consultation paper issued in June on the issue, the Government set out their reasoning for introducing such controls in relation to corruption. They stated:
"We have also considered whether we should go further and extend nationality jurisdiction to such an offence, recognising that this could send a strong deterrent message that the UK is determined to act against corruption wherever it occurs. This is a message that will have a real persuasive and dissuasive force … The Government, whilst recognising the practical problems associated with the prosecution of extra-territorial offences, believes that the balance of advantage rests with assuming jurisdiction over its nationals for offences of corruption committed abroad. Such an assumption of jurisdiction would put beyond doubt the UK's commitment to join forces with the international community and the fight against corruption".
We come here to the fight against extra-territorial brokering. The reasoning adopted is directly relevant to arms brokering. If the noble Lord disagrees it would be helpful if, in his response, he could distinguish
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between the two cases. First, why is it in order to criminalise brokering extra-territorially? Secondly, why not criminalise small arms, light weapons and ammunition which are the cause of countless deaths and hardship in many parts of the world?
The third reason advanced by the Government is the risk of criminalising the involvement of UK nationals based overseas in what they might think is a legitimate activity. I share the scepticism of the noble Lord, Lord Razzall, about the matter.
The presumption in law that ignorance of the law is no defence seems to have escaped the attention of the Government. However, setting that aside, one cannot help wondering who are these naive UK arms dealers brokering small arms in foreign lands who would be unaware of the provisions of the widely publicised Export Control Bill. Indeed, it is difficult to think of a subject more likely to interest them. Are they a different breed from those labelled by the Minister, Nigel Griffiths, in another place, as "resourceful, cunning and deceitful"? Are they different from those unscrupulous arms brokers who are skilled at creating shell companies and a confusing paper trail through many jurisdictions to prevent proper oversight of their work?
Is it conceivable that UK nationals brokering small arms deals overseas would not know of the Export Control Bill? They might not realise that they require a licence for brokering machine tools, but any UK national earning a living abroad brokering small arms and light weapons would surely check out whether the export control legislation affected him.
Assuming—and this is a large assumption—that such naive and innocent small arms dealers exist and, if they do, there could not be more than a handful—the Government well know that there is no obligation on them to prosecute them if they feel that an injustice would be done.
In conclusion, while I believe that five out of six of the Home Office criteria would be met, I will draw attention only to two of them, each of which would be considered as sufficiently important to justify the imposition of extra-territorial jurisdiction.
The first one is where it appears to be in the interests of the standing and reputation of the UK in the international community. In that regard, the Government have worked hard to position themselves as playing a leading role in international attempts to develop more responsible attitudes towards the arms trade and especially the control of small arms. Their standing, reputation and credibility to continue to advance these views will certainly not be enhanced by introducing flawed legislation which, while purporting to control the brokering of small arms extra-territorially, does nothing of the kind by providing and creating a loophole which any and every arms dealer will exploit.
The other criterion which seems to have escaped the attention of the Government is where the vulnerability of the victim makes it particularly important to be able to tackle instances of the offence. Arms brokering tends to be prevalent in war zones or localities where

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systems of law and order are breaking or have broken down. In such lawless environments the victims of the impact of brokered arms are normally powerless civilians and, all too often, women and children. Indeed, it is conservatively estimated that about 500,000 civilians are murdered each year as a result of the ready availability of small arms in Africa and elsewhere, often provided by the activities of arms brokers including UK nationals based outside the UK.
I have difficulty in believing that this Government, which to their credit are introducing the Bill, most of which I warmly support, appear to consider it a higher priority to protect a handful of small arms brokers based overseas rather than to protect countless innocent victims from the impact of brokered small arms. Can the Minister in his response comment on whether that is a correct conclusion on the Government's priorities? I beg to move.
Lord Judd: My Lords, I hope that my noble friend will take seriously what has been said by the noble Lord, Lord Joffe. Few members of this House can speak with more authority on the issue. I know personally of the many dedicated and tireless years that he gave as chair of Oxfam, constantly aware of the human consequences of the issues that we are discussing.
The noble Lord put the case so well and argued it so intelligently that I cannot better him, but I should like to try to support him on one or two points. The first is the statistics that he gave towards the end of his remarks. It is important to remember that 92 per cent of the major world conflicts in the past 10 years have been internal affairs fought with small arms and other light weapons. Half of the casualties have been civilian—most of those women and children. Since 1990, during such conflicts 2 million children have been killed, 5 million have been disabled and 12 million left homeless. Small arms have helped to create more than 300,000 child soldiers. The devastation continues today. Those are the human realities to be pitted against the administrative and legal niceties that we were discussing until the noble Lord intervened.
The Government argue that extra-territorial controls on arms brokering are not legitimate because a reasonable United Kingdom person abroad could not reasonably be expected to know that he needed a licence to broker small arms. Like others, I simply cannot accept that. The high profile of small arms on the international agenda means that all arms brokers could be reasonably expected to know that they are involved in a highly sensitive trade in which new controls and agreements are continually being introduced.
Last year, there was a UN conference on illicit trade in small arms and light weapons in all its aspects and a legally binding UN firearms protocol was agreed. It is surely the responsibility of arms brokers to keep up with their obligations under new laws and regulations, not the responsibility of law-makers to slow down until the arms brokers are ready. As the noble Lord, Lord Joffe, argued, the Government have helped to create an international consensus on the need to
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control the trade in small arms, including small arms brokers. Failing to introduce extra-territorial controls on UK citizens involved in the trade would run counter to that whole endeavour.
Finally, we in this House have a way of rarefying the argument from its human reality by talking in the abstract. The people involved in that brokering are cruel, sinister, calculating, greedy, wicked people, as the result of whom we are faced with the figures cited by the noble Lord, Lord Joffe, which I have tried to underline. We need to take tough action and not allow people to think that because they can go off to some country that is not playing the game, they can go on making their money as merchants of death.
7.30 p.m.
Baroness Miller of Hendon: My Lords, the noble Lord, Joffe, explained his amendment extremely well and I cannot add to or improve on what he said in any way. The noble Lord, Lord Judd, also added to his argument. I simply say that I agree with the amendment. I tabled a similar amendment in Committee—Amendment No. 63—but I did not move it.
I support the noble Lord's amendment but, as I told him, it should go further because it does not cover a person who is not a United Kingdom national but is ordinarily resident here. I hope that the Government will accept the amendment and we may then improve the provision in that way.
Lord Sainsbury of Turville: My Lords, perhaps I may make one general point, because it is critical. There has been much talk about the wicked, greedy arms brokers and so on. It should be realised that the amendment applies also to a UK citizen who may be working for an Australian company that is selling rifles to America. We are not dealing with a class of arms brokers whose sole role is trading in arms across the world.
The noble Lord, Lord Joffe, suggested that one can just hop on a Eurostar to evade controls. Obviously—this is not a facetious point—France, Germany, Belgium and Holland all either have or are in the process of introducing legislation to control arms brokers. I say that to underline that the way to control such activities is through international co-operation.
The amendment would impose an immediate and complete statutory ban on the trafficking and brokering of certain long-range missiles and two classes of paramilitary equipment—briefly, leg irons and electric shock weapons—and add small arms and light weapons to those categories of goods for which trafficking and brokering controls will apply extra-territorially. It would enshrine in primary legislation some aspects of the operation of trafficking and brokering controls which we propose to include in secondary legislation, but it also goes further than the Government have announced that we intend to go.
As I have already explained when discussing Amendments Nos. 13 and 14, the Bill is designed to provide the Government with flexibility to alter

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controls introduced under it as necessary to respond to changing circumstances, including action within the EU, subject to scrutiny of those changes by Parliament. Enshrining details of the trade controls in primary legislation would prevent that and introduce an undesirable degree of rigidity.
In particular, the amendment would introduce a statutory ban on trafficking and brokering in long-range missiles and certain paramilitary equipment. We have made clear that those controls are intended to enable the Government to prevent the supply of equipment whose export from the UK we would prohibit. However, there are certain limited circumstances in which goods within those categories are legitimately exported from the UK. For example, long-range missiles or their component parts may occasionally be exported to our NATO allies, and such exports are fully in accordance with our obligations under the missile technology control regime.
The amendment would prevent the Government from considering any applications to trade in such goods. Moreover, the European Community is currently considering introducing its own controls on exports and trade in torture equipment. To enshrine national controls on these items in primary legislation could lead us into conflict with any future European Community legislation.
The amendment would require trade in small arms, ammunition and light weapons to be controlled whether carried out in the UK or by UK persons overseas. Noble Lords will be aware that the Government consulted last spring on the extent of extra-territoriality for the proposed trafficking and brokering controls and, as I mentioned, decided in the light of that consultation that controls on trafficking and brokering of torture equipment, long-range missiles and of arms to embargoed destinations—where the aim is to prohibit the supply of equipment whose export from the UK we have in effect banned—hould apply extra-territorially, while other controls would apply to activities taking place in the UK.
Those conclusions were announced in October and reflected in the dummy draft orders. I have already explained the basis for that decision, namely the difficulties of criminalising the activities of UK citizens settled abroad who may be engaged in perfectly legitimate trade in their countries of residence. I must also say that it would be difficult to justify drawing a distinction between small arms and light weapons on the one hand, and other weapons on the other.
Nevertheless, as I explained, the Bill would not preclude the introduction of controls along the lines of those proposed in the amendment. It would permit the Government to introduce extra-territorial controls on trafficking and brokering in small arms and light weapons should we consider that appropriate in the light of significant new developments—such as, for example, reaching international agreement to apply trade controls extra-territorially or to ban certain exports.
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I turn briefly to the Home Office criteria. It was argued that they would justify extra-territorial jurisdiction in this case. It was argued that the Home Office criteria would justify extra-territorial jurisdiction in that case.
In fact, the Home Office guidelines state that extension of jurisdiction overseas may be considered when certain factors are met. It also makes it clear that meeting those factors is not in itself sufficient to justify extra-territorial jurisdiction but that practical enforcement issues would also be relevant. It has been the policy of successive British Governments to resist strong attempts by other states to impose extraterritorial controls on our territory. We maintain the view that it would not be right to take extra-territorial jurisdiction over activities such as trade in military equipment, including arms, the majority of which will constitute perfectly legitimate transactions.
The Government share the concern of the noble Lords who tabled the amendments about the need to tackle the proliferation of small arms and light weapons. The new controls that we propose would contribute to that end. We have been working with other Governments to achieve international agreement on universal adoption of such controls. We are working to achieve international agreement to take action to regulate the activities of those engaged in brokering, in accordance with the United Nations programme of action on small arms and light weapons, agreed last July. The recently agreed EU common position on the introduction of trafficking and brokering controls by all member states will encourage the introduction of similar controls throughout the EU. The trafficking and brokering controls that we propose are fully consistent with the UN programme of action and the recent agreement in the EU.
The noble Lord, Lord Joffe, ended by saying that the amendment would send a clear moral message. Saying that we will do something and then being unable to deliver on it does not send the right kind of moral message. The moral message that we want to send is that, when we say clearly that we will do something, we will deliver on it. I urge the noble Lord to withdraw the amendment.
The Earl of Sandwich: My Lords, is the Minister implying that, if the Government were to accept the amendment, it would inhibit progress on international legislation? That leads me on to ask whether, if there were no such international legislation, the Government would accept the amendment.
Lord Sainsbury of Turville: My Lords, the main point that I was making was that the main way to deal with most of these issues is through international co-operation.
Lord Joffe: My Lords, would it be possible for the Minister to answer the questions that I put to him, before I reply?
Lord Sainsbury of Turville: My Lords, I thought that I had answered them. If there are any specific points, I shall be happy to answer them. Perhaps the noble Lord will write to me, and I shall write back to him.
Lord Joffe: My Lords, so far I have not found writing to be very successful.

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The Minister drew attention to the importance of international co-operation. I agree with that, but it does not prevent the UK Government from taking action in advance, as they have already done, and leading the way.
The Minister told us that the Government had the power to introduce controls. Indeed they do. What worries us is the dummy legislation and the proposed controls, which provide that any arms dealer who manages to get outside the country to conduct his or her activities will be behaving legally. I am unpersuaded by the Minister's response, but I will have the opportunity to consider what he said and, perhaps, propose the amendment again at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage do not begin again before 8.44 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Public Services
7.44 p.m.
Lord Campbell of Allowayrose to ask Her Majesty's Government what action they are taking to contain disruption to public services.
The noble Lord said: My Lords, the Question raises the general case as to whether any action should be taken and, if so, what action? Should it take place before or after the general election? It is an essentially political decision that is worthy of your Lordships' attention. As I have no other opportunity in this dinner-hour debate, I want to thank the distinguished noble Lords from all parties who have attended this exploratory debate. We will discuss the matter, but we will not divide, and we may change some of our opinions.
Should an effective framework of law be introduced to contain disproportionate disruption of our public services by collective industrial action carried out at the behest of trade unions? That would be the last putative step to be taken in the step-by-step approach adopted by my noble friend Lady Thatcher. It was never taken—rightly, if I may say so in the presence of my noble friend Lord Tebbit. Some 20 years ago, when my noble friend was Secretary of State, it was his opinion that there was no need to take it. I agree that that was right at the time. However, the situation today more or less demands consideration of the question whether the symbiotic relationship between the trade unions and a Labour Government should continue to erode the entitlement of any government to govern under due parliamentary process. Should some framework of law be introduced to meet the concerns of the vast majority of Her Majesty's subjects, many of whom no longer bother to vote?
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The Public Services (Disruption) Bill was given its First Reading last Tuesday. It is a tentative proposal for a resolution of the issue. I make it plain that the purpose of this debate is not to pre-empt critical examination of that Bill on its passage through your Lordships' House. We are concerned with the essence of the question, which is whether there is a general case for the introduction of a new framework of law, in whatever form your Lordships may think tit. That is the scope of the debate: it is not limited to my Bill.
The proposals set out in the Green Paper—Command Paper 3470—in November 1996, when there was disruption to the Royal Mail and the London Underground, were strongly opposed by Labour. The way in which they were opposed is irrelevant: the fact is that they were. On 3rd July, after a change of government, when there was disruption again—this time to British Airways and Connex —the noble Lord, Lord Clinton-Davis, said at the Dispatch Box:
"The Government see no justification for adding to the existing controls on industrial action".—[Official Report,317197: col. 302.]
However, in 2002, the Prime Minister and the Leader of the Opposition both said that some such action should be taken; hut, as yet, they have not said what that action should be.
The scenario today is that we have to suffer disruption of our public services, and the continuing threat of such disruption, at the behest of trade unions that oppose government policy on public services reforms. For example, the General Secretary of the General and Municipal Workers—the GMB—threatened to withdraw union support for Labour council candidates due to the proposed private finance initiative in hospitals.
Many trade unions have also run media campaigns to oppose public service reforms. UNISON has spent money on an advertising campaign for cinemas,
"with the message that 83 per cent of the public do not want private companies to run public services".
Unions have threatened to withdraw financial support for the Labour Party; for example, last year, UNISON threatened to withdraw its £1.3 million funding. In May 2001, the Fire Brigades Union voted to allow the union to fund organisations and candidates opposing Labour.
There has also been the threat of strike action over proposed job cuts at Consignia. Reports have suggested that militant elements within the National Union of Rail, Maritime and Transport Workers—the RMT—are attempting to use industrial action to force re-nationalisation of the rail system. The TUC conference, individual union conferences, and the Labour Party conferences put across their opposit on and reservations over public services reforms. The GMB, UNISON and TUC websites set out how and why the unions are opposing reform of the public services if it involves the introduction of private services.
In the main, the contest now is between government and the unions. It is a political contest that has little to do with what is ordinarily understood as a trade

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dispute, as defined by statute. The main areas of disruption in public services—utilities, transport and communications, including public administration, health, electricity, gas, water, post and telecommunications—taken as a percentage of all working days lost from the period 1971 to 1976, which my noble friend Lord Tebbit will all too well remember, averaged out at about 10 per cent to 12 per cent: from 1987 to 1995 the figure was about 65 per cent. Those are Board of Trade figures that feature on page 4 of the 1996 Green Paper.
I turn to figures for 1994–2000 from the Office for National Statistics—papers that are in the Library of the House—which were taken on a different basis. It is difficult to assimilate both; indeed, one can draw only a broad picture. According to those figures, on a total of 1,303,000 lost days in 1996, 874,000 were attributed to transport, storage and communications; 158,000 days were lost in public administration and defence; 120,000 were lost in education; and 8,000 were lost in the health and social work fields.
The figures regarding days lost for the year 2000 show that, from a total of 499,000, 97,000—again, the lion's share—related to transport, storage and communications; 50,000 days were lost in public administration; 50,000 also in the education field; and, in the health and social work sector, 122,000 days were lost compared with 8,000 in 1996. In my Question for Written Answer tabled on 10th of this month, the percentage is sought for transport, post services and telecommunications, which are the main ingredients of disruption. I make no complaint that such figures have not yet been provided.
However, using a broad brush, is it not wholly apparent to your Lordships that this presentation affords cogent support for the general case that some steps must be taken to contain disruption in the public services? It is right also in this context to acknowledge again, as I have acknowledged previously, that both right honourable gentlemen—the Prime Minister and the Leader of my party—agree that something must be done.
In conclusion, perhaps I may remind your Lordships that, on last St Valentine's Day, The Times leader told its readers that cuckoos had now returned to the crows nests of the trade unions whose members are employed in the public services: and said that something must now be done to contain disruption—the subject matter of this Question. My Lords, what shall now be done?
7.57 p.m.
Lord Tebbit: My Lords, I hope that noble Lords will forgive me for intervening at this point. Although I put down my name to speak in this debate—as I thought, through the usual channels—it does not appear on the speakers' list. I am grateful to the noble Lord, Lord McNally, for giving way.
As noble Lords will know, this is a subject in which I have some interest. My mind is taken back to 1983 when the then Cabinet pressed me to do something
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about strikes in the essential services. Your Lordships will recollect that we had just experienced an extremely difficult and damaging strike in the water industry. There was grave public concern at the time. I remember slightly shocking my colleagues by saying that I was against taking any measures specific to the essential, or public, services. I was against creating two categories of workers, except in the most clearly defined and limited manner; that is to say, the armed services and the police, some of whom would have the right to take industrial action but some of whom would have that right restricted in some way.
It seemed to me then—and that is still the case now—that to deny a worker the right to withdraw his labour simply because he is employed by, say, a water company, as opposed to a retailer, would have to be balanced by some quid pro quo, such as binding arbitration in the case of trade disputes. That I did not welcome.
Furthermore, I shuddered at the task of legislating to define an essential service. It would probably be even more complex today. And some public services are not essential—at any rate, not in the short term. For example, about 20 years ago I guessed that Royal Mail would have been seen as essential and that telecoms probably would not. I believe that today we would take precisely the opposite point of view. Would railways now be regarded as essential? Our recent experience has been such as to persuade us that railways are not essential—we have been managing almost without them for some time. Moreover, are they a public service or are they an essential service? What about the employees of subcontractors to water or power companies or the railways? The questions appear to me to be endless and the ethics dubious of legislating in that area.
My argument was that if I got my legislation right, it would work in the essential and the public services just as well as in the non-essential services. And so it did. Across the board, the insane industrial disruption which had tipped both the Callaghan and Heath governments out of office subsided and this kingdom became a paragon of good industrial relations.
However, my noble friend Lord Campbell is right to express concern at the deterioration in industrial relations in what are not so much the essential services as the quasi-public sector and the public sector and the regulated sectors. What is more, the contagion which we see in those sectors is likely to spread to the mainstream private sector in a mirror image of what happened in the spread of peaceful industrial relations in the 1980s.
However, if I was right 20 years ago—and events would suggest that I was—what has changed now to bring about the deteriorating tendency in the past few years to which my noble friend Lord Campbell referred? Certainly public sector unions are today in an ugly mood. They have been paying their subscriptions to the Labour Party, just like the Hindujas, Mr Mittal, Mr Ecclestone and the chap who is the proprietor of some firm which makes vaccines against smallpox. They expected the same kind of favours that all those

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gentlemen received for their money. To be fair, they have not had them and they are disgruntled. And I am not sure that I would blame them.
However, that cannot be the whole story. Union leaders were, after all, far from gruntled when I was Secretary of State, but despite that industrial relations improved. The fact is that although my legislation has not been repealed or openly amended, and nor has that of my successors, it has all been severely undermined by human rights legislation and employment protection legislation conceived in Brussels. Although it has not been tested in the courts, there is a consensus among lawyers in the field that the provisions I made—for example, to allow those breaking their contracts of employment by striking to be dismissed and for an employer then to recruit new labour or selectively to re-employ strikers—would now fall foul of European law.
My conclusion, therefore, is that we do not need to enact any new provisions. If we want to restore the good relations of the 1980s and 1990s, two things are necessary: first, that new Labour should not revert to old Labour by doing favours to its trades union financiers secondly, that human rights legislation and the employment protection legislation of recent years, which has undermined the legislation of the 1980s that made Britain a country of excellent labour relations, should now be repealed. In my view, it is far better that we should deal with the causes of the problem of the deteriorating industrial relations in the public sector and in the essential services than that we should now legislate any complex laws to make fish and fowl of workers according to the nature of their work.
Lord Grocott: My Lords, perhaps I may remind the House that the debate is limited to one hour. I am sure that we will move on as quickly as we can.
8.5 p.m.
Lord Lea of Crondall: My Lords, I hope that it is in order for me to speak for a couple of minutes in the gap. I do so in the light of the way in which the previous two speeches have gone. I remember the circumstances of the Green Paper issued by the Conservative government in 1996. Indeed, I remember it rather well. At that time, polling was carried out on how people saw the proposals in the Green Paper which were, inter alia, to give the government the right, with proportionality, to take action against strikes in certain industries.
The question was put by a polling organisation in the autumn of 1996:
"What do you think is the biggest problem facing public services?".
It became obvious that funding was the overwhelming problem, with workers going on strike polling only 7 per cent of the votes. People were asked:
"Do you think that the government has brought these proposals forward at this time because there is a growing problem of public sector strikes or because there is an election coming up?".
Fourteen per cent of voters said that it was due to public sector strikes and 79 per cent said that it was because there was an election coming up. Among
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Conservative voters, 26 per cent said that it was because of a growing problem of public sector strikes and 63 per cent said that it was because an election was coming up.
People were then asked:
"Would these proposals make you more or less likely to vote Conservative at the next election?".
Four per cent said more likely, 20 per cent said less likely and 74 per cent said that it would make no difference. We therefore did not hear much more of those proposals.
Of course we hear the continuous chatter about trade unions and the Labour Party. During the 20th century, from the Osborne judgment onwards, there have been many opportunities to vary the system. It is not a question of trade unions giving money to the Labour Party—they do not do that. Members of trade unions which have political funds and which are affiliated to the Labour Party, and individuals who are not contracted out, are members of the Labour Party. They pay X as their subscription as members of the Labour Party.
In conclusion, I remind the House and the noble Lord, Lord Tebbit, in particular—I imagine that he will remember it ruefully—that it was thought that it would be wildly unpopular for unions to carry on having political funds and it was made mandatory that they should ballot on whether they would continue to do so. One hundred per cent of the unions with political funds voted to continue with those funds and 17 additional unions voted to have political funds.
It cannot seriously be said that at this time we do not have a more co-operative trade union movement than we had 20 or 30 years ago, a period to which reference has been made. I believe that most people would accept that the degree of co-operation between the trade union movement and the government has improved. Clearly, there is in the minds of some people confusion about the role of the Government as the employer and their role as a government—
Lord Campbell of Alloway: My Lords, I thank the noble Lord for giving way. With the greatest respect, I should make the point that I am not criticising the trade unions. Because the leaders of two political parties, including the noble Lord's own, think that something should be done, I ask only that something should be done. I am not here either to criticise the trade unions or to suppose that the Green Paper proposals are the answer. I have done neither.
Lord Lea of Crondall: My Lords, I shall say a few words in the final seconds of my intervention. What is happening at the moment in the debate about the public services is that understandings and negotiations are properly being carried out and concluded between the Government and the unions in the public services concerning the protection of the rights of the workers at the point at which they are transferred from the public service to the private sector, or on the introduction of PFIs and so forth. That is what in the main is happening at present.
8.11 p.m.
Lord McNally: My Lords, this debate has attracted attention as it has gone along. It is as though the noble Lords, Lord Lea of Crondall and Lord Tebbit, were passing an open bar door and said, "Is this a private fight or can anyone join in?". The debate has been the richer for seeing both noble Lords back in the saddle.
I shall try to get us back on tack because we are all eager to listen to the Minister's response to the interesting Question put before the House tonight by the noble Lord, Lord Campbell of Alloway. The noble Lord said in his intervention that he is not attacking the trade unions. I do not wish to tempt a second intervention, but to a certain extent in his presentation, I thought that he almost suggested that the trade unions should not have a campaigning agenda. I see nothing wrong with the trade unions attempting to influence the government of the day through adverts, rallies and so forth. A few years ago I believe that it was Mr Stephen Byers who raised the question whether the direct link between the Labour Party and the trade unions was wholly healthy. As the noble Lord, Lord Tebbit, with his usual pugnacity and effectiveness, demonstrated, it remains something that seems strange.
This is a timely debate and one that will focus Parliament and the country much more than perhaps has been the case tonight. There is a feeling that we are entering a rougher industrial relations climate. As the noble Lord, Lord Campbell, pointed out, rumblings of discontent can be heard throughout the public sector: teachers, the police, railway and Tube staff, health service workers, university teachers and postal workers. Almost every sector mentioned in the Bill introduced a couple of days ago by the noble Lord is expressing some kind of discontent.
Of course, even using the word "discontent" takes me back to an era with which I am very familiar. I worked in Downing Street as a political adviser to the noble Lord, Lord Callaghan, during the winter of discontent in 1978–79. At that time, the labour movement, both political and trade union, got itself into a most unholy mess. I shall leave it to the judgment of history how we got into that mess, but it is worth recalling some of the clear lessons that came out of it.
First, it cannot be doubted that it is within the power of organised labour to summon the capability to inflict damage, disruption and discomfort on its fellow citizens. If we needed a recent reminder, then the disputes on the railways and the Tube demonstrated that it is possible for industrial action to hurt people who have no relationship whatever with the core dispute. The recent strikes by teachers did not hurt the education authorities. Those affected were working mums who had to make different provision for their children. As I have said, it is the hard-pressed commuter who suffers the pressure in the sandwich of the struggle between the unions and the employers. It was reported in today's Guardian that the Fire Brigades Union is to pull out of a no-strike agreement. Again, that is action which recalls the disputes of almost a quarter of a century ago.
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So the lessons of yesterday and today are clear: industrial action by the public sector can and does hit the wider public. But there are other lessons from the past which those who preach the new militancy should put into the equation. The militancy of 1978–79 did not bring about a breakthrough in the pay, status or job security of the workers involved. On the contrary, it produced a government which brought about a major reduction in trade union power—a point mentioned by the noble Lord, Lord Tebbit—oversaw an increase in unemployment from under 1 million to over 3 million and carried out a massive transfer of employment from the public sector to the private sector. A capacity to hurt does not inevitably lead to an ability to win.
We are told that the new breed of union leaders have risen to the top seeking a pattern of more confrontational industrial relations, particularly in the public services. All one can say in response to such militancy is that the lesson of 1979 is very simple. The public at large are fairly slow to anger and often sympathetic to individual union grievances. But if they see themselves being used as a political football by public service unions, if they see pain and discomfort being used as a weapon in industrial disputes in which they have no part, they will demand action and protection from the government of the day. If the government of the day cannot or will not provide such protection, then the public will replace the government of the day with one willing and able to do so.
I say that as a simple lesson of history which I hope that Tube workers, teachers and others do not have to learn the hard way. That does not mean that the Government should be passive in the face of a changing mood in the public services. I agree with the noble Lord, Lord Tebbit, that an holistic approach is needed. It may be that yesterday's Budget proved to be a genuine crossing of the Rubicon in terms of the Government's attitude to public service workers.
Earlier this week, in response to a question from myself, the noble Lord, Lord McIntosh of Haringey, gave an assurance that the Government do not work on the basis of public sector bad, private sector good. I am not sure that that has always been made as clear over the past five years. Public servants need to be valued, not only in terms of pay, but also in terms of esteem, in their training and in the career prospects built into their chosen professions. For example, in a recent edition of the Public Service Magazine, an article stated that,
"the NHS needs to prepare people for leadership roles. Here is where we will build and nurture talent. It may take a bit longer, but over time it will provide the NHS with sustainable solutions".
Quite so.
Yesterday, the noble Lord, Lord Clarke of Hampstead, pointed out that if the Post Office had been given the commercial freedom promised in the last Labour manifesto, and if it were properly funded and free of political interference, it would he safe to assume that it would be able to deliver its objectives. Almost every teacher will say that they need the freedom to escape an over-centralised bureaucracy that puts a mountain of form-filling between them and the children they want to teach.

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Two years ago, I served on a Select Committee of this House chaired by the noble and learned Lord, Lord Slynn of Hadley. We looked at the impact of the changes made in the 1980s and 1990s on the public service and public servants. We were amazed but encouraged to find that the commitment and dedication of our public servants, in all sectors, was still in place.
All three of my children go to state schools. For 51 weeks of the year I stand in awe of the dedication of our teachers. The one week of exception is when the National Union of Teachers comes together for its annual conference.
But the public service ethos is still there and needs to be encouraged by the Government as part of the holistic approach that I advocate. We have to restore quality and commitment to our public services. Of course they have to meet tests of efficiency, cost effectiveness and quality of delivery but they have to be convinced that they are not second class or second best services. That is the Government's side of the equation. I have tried to think of a phrase for it. I came up with the idea of a "social contract", but perhaps the Government would not want to go back to that.
There is a quid pro quo between demanding commitment and loyalty from public servants and being able to rely on them not to inflict damage on the wider community. Sometimes we must wonder what a profession such as nursing, which shows tremendous commitment, learns from the fact that its members are left on the pay ladder at a position where they cannot even afford social housing. So there is more to this matter than simply further legislation. It is a matter of providing the resources, training and a career structure to win the confidence of our public servants.
Nevertheless, within that context, one would hope that they will resist the siren voices for the short-term fix of a return to industrial militancy. There have been legitimate frustrations in our public services over the past few years that need to be addressed. Regardless of what the noble Lord, Lord Tebbit, said—although his experience is valid in this regard—there is a case for exploring whether compulsory and binding arbitration, certainly in some industries, is the best way forward.
Lord Tebbit: My Lords, the problem with binding arbitration is that if one side does not accept it, it is not binding. You then have to have some further sanction against them—and that is a road down which I would not wish to go.
Lord McNally: My Lords, the noble Lord speaks from experience—experience from which, as he pointed out, the Government have not been hasty to reverse.
It has been demonstrated by the debate that there is an agenda to be discussed. If we can encourage a genuine debate we may be able to head off the solution
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of the militant quick fix and restore the confidence of our public services and our public servants in the deal that they are given by the community at large.
Lord Campbell of Alloway: Before the noble Lord sits down, I go along totally with his concept that there must be mandatory arbitration. That is not something that ought to be discarded.
Lord McNally: My Lords, I certainly do not discard it. I shall be very interested to hear how the Minister's argument develops on this issue. I remember that during the 1980s there were all kinds of pendulum and other arbitration.
The public want to see that the Government are aware that the storm clouds are gathering and that they are not just waiting for the storm to break. They want to see that they are thinking constructively about how we can build a system of industrial relaions within our public services which gives the freedom of trade unions but also recognises the rights of the wider community.
8.24 p.m.
The Earl of Northesk: My Lords, I congratulate my noble friend Lord Campbell on initiating the debate and thank him for giving us the chance to explore this matter today. It opens up a further and hugely important strand of the ongoing debate about the state of public services, defined recently by Bruce Anderson in the Independent as,
"the greatest paradox in modern British politics—They spend vast sums of the public's money, yet few of the public feel well served".
The fact is that this stands at the very top of the domestic political agenda—notwithstanding hurting or anything odd like that. Indeed, as we all know, public service reform is the platform upon which the Government came into office. The Labour Party manifesto states:
"Renewal of our public services is at the centre of new Labour's manifesto".
Against this background and for the avoidance of doubt, I should make one point abundantly clear at the outset. For our part, we on these Benches believe strongly in the ideals of the NHS and other public services. We are wholly and wholeheartedly committed to them. The public have a right to no less. But, under the current Government, we are lurching ever further away from these ideals. It is evident that over the past five years taxes have gone up and public services have become worse.
That is why my noble friend's debate today is so timely and so valuable. It acknowledges not only that the cycle of decline in public service delivery needs to be addressed urgently but also that its context, the social and political climate in which it finds itself, has changed out of all recognition in recent times. It is this upon which I wish to focus in my remarks.
A measure of this is to be found in an interesting, even refreshing, document published recently by the Government. I am sure the Minister will recall the

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reply that he gave last month to a Question for Written Answer from his noble friend Lord Tomlinson seeking an outline of the Government's strategy for reform of the public services. The noble Lord's reply referred to the pamphlet, Reforming our Public Services; Principles into Practice, published by the Prime Minister. That document states on page 8:
"Public services…have to be refocused around the needs of the patients, the pupils, the passengers and the general public rather than the problems of those who provide the services".
Hooray to that. On page 11 it suggests:
"The starting point must be that the public has a right to good quality education, to healthcare, to law and order, to local authority services, to income support, and that it is the duty of the Government to secure these rights on their behalf".
Again, hooray—although I express surprise that there is no mention here of a right to, for example, efficient public transport. Moreover, I also express surprise that this is in stark contrast with the Chancellor's obsessive attachment to statist models of public service delivery.
None the less, the relevance of these statements to my noble friend's proposition is profound. As I said, in recent times there has been a sea change both in the public's perception of and policy attitudes towards the public services. As the pamphlet states:
"Rising living standards, a more diverse society and a steadily stronger consumer culture have increased the demand for good quality schools, hospitals and other public services, and at the same time brought expectations of greater choice, responsiveness, accessibility and flexibility".
So we have to be drawn to the inevitable conclusion that it is the Government's wish to deliver customer-focused public services as a direct response to public demand, if not, as it were, an inalienable public right. This is the internal logic of the text of the pamphlet.
But, as the Prime Minister's observations about the "dark forces of conservatism", "the scars on his back" and "wreckers" indicate, there is many a slip twixt cup and lip. It is all very well having the best of intentions but these are utterly worthless if they are not translated into reality. As I said, the reality that the long-suffering public have to live with on a daily basis is that services are deteriorating. On top of this, Gordon Brown is dipping ever deeper into people's pockets, demanding that they pay for the Government's failures in public service delivery.
This is the stark legacy of the current Government after five years in office. As Peter Riddell observed earlier this week in The Times:
"The Government needs not just to extend patient choice (often limited in practice) but to make a reality of its rhetoric that the system is run in the interests of patients rather than NHS staff"—
a remark that could equally well be applied to other public services such as those that are the focus of my noble friend's attention—the transport, post and telecommunication sectors.
As my noble friend Lord Campbell has outlined, these sectors have seen a rising tide of union militancy in recent times. Strike action within Consignia is a running sore accounting for more than half of all the strikes in Britain. As the travelling public know only
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too well, disruption on the railways has risen over the past few months. The trend line of public service disruption is upwards. But the essential point is that such actions cut across the grain of the Government's aims as stated in the Prime Minister's pamphlet. And yet, as my noble friend Lord Tebbit has illustrated, they are also, at least in part, a direct result of the Government's policies.
It is impossible to say which strand of policy the Government have faith in, to which they are wholly committed. But if the Prime Minister's pamphlet is to be more than just soothing rhetoric, we could presume that the Government are not averse to some sort of measure to constrain the rights of public service workers to take industrial action.
In a nutshell, my noble friend is suggesting a method by which that could be achieved. If I may paraphrase his proposal—I hope accurately—the right to strike of those in the public services in the transport, post and telecommunications sectors should be made subject to adjudication of the High Court as to whether the industrial action envisaged would be excessive or disproportionate as the means to resolve the dispute. For example, there may be a legitimate question to be asked; namely, whether the recent strikes by security workers at Manchester airport can, in the wake of the events of 11th September, be deemed proportionate. It is worth remembering that these strikes have taken place against the background of a serious security breach on 8th February, when fake explosives, detonators and genuine firearms were taken on board a British Airways flight to Gatwick. That begs the question as to whether strike action—whether or not by public service workers—can ever be proportionate if it exposes the public to that level of risk?
The Government maintain that public services should be,
"shaped around the needs of their customers".
In other words, they are increasingly seen to be a legitimate right of the public. Accordingly, it is reasonable to argue that a building-block in securing the climate in which to achieve appropriate reform to this end should be to define in law the relationship between the workforces of the public services concerned and the customers who use them. In this way, the virtue of the Government's stated aim that public services should be made to work more effectively and efficiently to the benefit of their users would be cemented. It would shift the balance away from vested internal interests to the needs of the individual customer.
Here, we should be mindful of a further change in the context in which public services now operate; namely, the Human Rights Act, referred to also by my noble friend Lord Tebbit. If we are to accept, as the Government maintain, that the public have a right to essential services in the transport, post and telecommunications sectors, it is logical that such a right should not be withdrawn "disproportionately" as a result of industrial action. Moreover, if access to services is to be conceived as rights-based, there is logic to the presumption that rulings as to whether

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disruption to them is disproportionate or excessive should fall under the jurisdiction of the High Court. None the less, my noble friend Lord Tebbit—I bow, as I must, to his expertise in this area—makes a further powerful point. As he suggests, we can speculate as to whether the rights-based culture that has necessarily arisen as a result of the Human Rights Act has made it easier for trade unions to resort to industrial action. Nor should the effect of the Government's blithe acceptance of directives from Europe be underestimated. There is a real sense in which the Government's stated aim is to some degree being undermined by their policy approach in these areas. In reality, as my noble friend Lord Tebbit so astutely points out, there is also the difficulty of potentially creating two classes of workforce.
Viewed realistically, there is no reason why people should not have access to proper delivery of all services, irrespective of whether they are public or private. Indeed, this gets to the heart of the matter. Should not people have access to the same standards of service from the public sector—and by implication a relative freedom from the inconvenience and hardship of disruption—as they have come to experience from the private sector.
Be that as it may, like my noble friend Lord Campbell and the noble Lord, Lord Lea, I acknowledge the antecedents of the proposal. The Green Paper, Industrial Action and Trade Unions,. published in 1996 by my noble friend Lord Lang when he was President of the Board of Trade, postulated various options for change in this area. Drawing from their thrust, my noble friend has drafted but one solution to the problem in his Bill, which we shall no doubt debate in due course.
As I say, the important point is that the context and the public perception of public services have changed markedly over the past five or so years. I merely note in passing that, as cited in the Green Paper, most other countries have provisions in law to restrict strikes in essential services. Recent and increasing experience of hardship and inconvenience by the public in the transport, post and telecommunications sectors implies that there is a burgeoning problem in these services, as the noble Lord, Lord McNally, pointed out. And of course the problem is exacerbated both by the Government's consistent failure to address the problem of public service delivery adequately and the increasing levels of disruption to which the public are being exposed.
I conclude by returning to the theme enumerated by Peter Riddell earlier this week in The Times. Again, his remarks apply equally to the transport, post and telecommunications sectors as to the NHS. He said:
"The NHS can also be made more consumer-friendly…That is the heart of the Government's political dilemma. Its emphasis so far has been primarily managerial, on changes such as the new primary care rusts. But this means little to most patients".
I make no judgment as to whether the proposition of my noble friend Lord Campbell, or something like it, would be an appropriate step to take towards establishing more "consumer-friendly" public services. But, as I have tried to explain, the context of the
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problem makes its resolution a matter of urgency. As the Government know only too well—and wholly justifiably—the public's patience is wearing decidedly thin.
So what is really at issue here is whether the Government have the courage of their own convictions—or rather, whether the Prime Minister's or the Chancellor's policy approach is about to hold sway. Will the Government translate the Prime Minister's Office of Public Services Reform pamphlet into reality? Or is the country to be condemned by Gordon Brown to paying through the nose in taxes for ever worse services? On the evidence of yesterday's Budget, I fear that under the current administration the vision of "consumer-friendly" public services is no more than pie in the sky.
8.37 p.m.
The Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster (Lord Macdonald of Tradeston): My Lords, I am conscious of the time that I have to address the issues raised by the noble Lord, Lord Campbell of Alloway. He was listened to with great respect, given the way in which he has specialised in industrial relations over the years, and also for the measured way in which he advanced his arguments. I shall not attempt, as he suggests, to pre-empt debate on the details of his Public Services (Disruption) Bill. I merely mention it in passing.
Let us take the issue of strikes first and our approach to the public sector. It is our hope, as I am sure it has been of previous governments, to move forward in partnership with public sector workers—with doctors, nurses, teachers, and the police. We want reform in the public sector; and they tell us that they, too, want reform. We believe that the way to better services is to try to enlist everyone in the pursuit of excellence and to try to move forward in consensus, backed by increased investment.
We have heard a list of the industrial relations problems that might be faced in the near future, but we should also welcome the end to the industrial action in Jobcentre Plus, where there were difficulties over claims regarding staff safety at work in benefit agencies. I hope that those will be resolved in the very near future through patient negotiation. Last week, we heard my noble friend Lord Mackenzie talking about the fears of police officers over their new contracts. He expressed the belief that it would be unthinkable for the police to strike. That view seems to be shared by the great majority of his former colleagues. Progress is being made on the issues in the police dispute through the Police Negotiating Board, and precedent suggests that consensus will be reached. I also welcome the recent decision by head teachers to co-operate with the proposed extension of performance-related pay for teachers.
The noble Lord, Lord Campbell, mentioned statistics, and the noble Earl, Lord Northesk, talked about trend lines, but I think we should look at the comparisons to see how well we have done in recent times compared with the darker days of the 1970s

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mentioned by the noble Lord, Lord McNally, and the troubled times of the 1980s experienced by the noble Lord, Lord Tebbit. The comparisons show that, whereas 1.3 million working days were lost in labour disputes in 1996, in the 12 months to December 2001, the number was reduced to fewer than half a million days lost. Also consider that figure in the context of the 1980s, when an average of 7.2 million days were lost annually in strikes. In contrast, in 1999, only 242,000 working days were lost, the lowest since records began.
The noble Lord, Lord Tebbit, gave a very interesting résumé of his thinking in the 1980s. Although many would think that his cautious approach was uncharacteristic, I thought it was very convincing—although I shall never be convinced by a description of him as "holistic". He rightly drew attention to the problems which could arise in matters such as binding arbitration and the judgments made in trying to define disproportionate action.
As a former trade union shop steward, my mind goes back to some of the lessons we were taught in those days. One of the most striking examples occurred in 1941, when the noble Lord, Lord Campbell, was himself in Colditz. Although it seems almost unimaginable now, there was a very serious strike in the coal mines in 1941, when 4,000 men were idle and an attempt was made to use the law against them. In those terrible times, simply because of the nature of these disputes and the facts of human nature, we ended up with bands marching at the head of striking miners and union officials being put in prison. The officials were rapidly released by the government, who realised that it was all going wrong, but there was an attempt to find enough magistrates to issue warrants against thousands of miners. It was soon realised that they could not put them all in gaol. Ultimately, of the 1,000 men involved, nine unfortunates had to pay their fine and did not receive their money back.
After all that chaos, there was a happy ending when the miners returned to work and coal output trebled. The incident has served ever since as a caution to Ministers and employers to ensure that action is proportionate.
As the noble Lord, Lord McNally, said, the Labour government of the 1970s also suffered. We remember the farce of the dockers being put into Pentonville prison, only to be sprung very rapidly under the government of Ted Heath and with the intervention of the Official Solicitor once it was realised that the situation could get out of hand. We also remember the 1941 Betteshanger disputes in Kent and the 1970s London dockers disputes.
In the recent fuel protests, when serving as Minister of Transport, I realised that it can be very difficult indeed to take legal action against some activities. Although we have emergency powers legislation which has been invoked perhaps a dozen times, it is not something to which one turns lightly. We rely on the good sense of British workers when they see the
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precipice looming in many such cases. It is to the trade unions' credit that strike levels have been so low in recent times.
As I said, I do not want to tread too far into the territory covered in the Bill promoted by the noble Lord, Lord Campbell. However, as my noble friend Lord Lea said, the 1996 Green Paper attempted to introduce certain proposals which were judged ultimately as much by the public as the trade union movement as confused, unworkable and likely to introduce uncertainty to industrial relations. I believe that even the Institute of Directors was very concerned about the implications of those proposals. It was also judged very difficult to achieve a workable test of proportionality.
Lord Campbell of Alloway: My Lords, I apologise for intervening, but the noble Lord has a few more moments. Could he very kindly say whether he agrees with the Prime Minister that something has to be done to contain disruption in the public services? That is the point of the debate.
Lord Macdonald of Tradeston: My Lords, my interpretation of the Prime Minister's comments is that he believes there has to be a better way than going on strike. We are pursuing an approach entailing partnership allied to investment, which we believe is the way forward. It is not a question of ending the right to strike but a matter of trying to end the need to strike.
We believe that the investment we have been making in the public sector has had a profound effect in the labour market. We have achieved the lowest number of people claiming unemployment benefit for more than 25 years. That will of course have a dynamic, knock-on effect in the marketplace when there is a tight labour market and people start flexing their muscles and asking for more money. People in the public sector can see a tight labour market in the private sector. Remarkably, however, 1.5 million more people are employed now than in 1997. That has to have an effect on the way in which people view their salary in relation to others. That is one of the issues that any government must face. It is also one of the problems that comes with our success. However, success for the workers involved has been demonstrated by the fact that pay for good and experienced teachers, for example, has increased by 30 per cent since 1997. The same applies to qualified nurses. The pay of hospital doctors has increased by at least 20 per cent since 1997.
We believe that the trade unions should be reassured both by the assurances we have given them and by other action such as changes to the TUPE regulations, transfer terms and pension rights. As the Prime Minister said, it is investment in return for reform.
The noble Earl, Lord Northesk, mentioned our pamphlet and our four principles of reform. Had time allowed, I should have liked to go into them more deeply. Nevertheless, the four principles are higher national standards and accountability; greater devolution and delegation to the front line; increased flexibility in the sense of an end to demarcation; and,

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very importantly, more choice and contestability. So, far from encouraging statist models, we are looking to PPP and PFI partnerships to have increased choice in order to ensure more customer-focused public services.

Export Control Bill
8.50 p.m.
Consideration of amendments on Report resumed.
Clause 5 [General restriction on purposes of control orders]:
Lord Sainsbury of Turvillemoved Amendment No. 16:
Leave om Clause 5 and insert the following new Clause —
"5 GENERAL RESTRICTION ON CONTROL POWERS
3 (1) Subject to section (Exceptions from the general restriction), the power to impose export controls, transfer controls, technical assistance controls or trade controls may only be exercised where authorised by this section.
(2) Controls of any kind may be imposed for the purpose of giving effect to any Community provision or other international obligation of the United Kingdom.
(3) In subsection (2) "international obligation" includes an obligation relating to a joint action or common position adopted, or a decision taken, by the Council under Title V of the Treaty on European Union (provisions on a common foreign and security policy).
(4) Export controls may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls.
(5) Transfer controls may be imposed in relation to any description of technology within one or more of the categories specified in the Schedule for such controls.
(6) Technical assistance controls may be imposed in relation to any description of technical assistance within one or more of the categories specified in the Schedule for such controls.
(7) Trade controls may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls."
The noble Lord said: My Lords, in moving Amendment No. 16, I wish to speak also to Amendments Nos. 18, 32 and 35. Noble Lords may recall our discussion about the Government's Amendments Nos. 43 and 46 to Clause 5 made in Committee on 4th March. During that discussion one of the issues we focused on was the expression "description of thing" which is now in subsections (1) and (2) of Clause 5. I explained why Clause 5 was drafted in that way, but the language used was nevertheless criticised and described by the noble Lord, Lord Phillips, as Orwellian "newspeak" when he presented his related amendments.
While it seemed to me that the criticism of the noble Lord, Lord Phillips, was a trifle harsh, the language used could not be described as a model of eloquence or clarity and I said that I would look at the matter again and consider whether we might produce text that 'was clearer. That, in essence, is what these amendments seek to achieve.
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I am sorry that the noble Lord, Lord Phillips, is not present to see the death throes of "description of thing". I hope that he and others will be pleased to see that the offending words have been removed. In getting rid of that phrase, we have restructured Clause 5 and made it into two clauses. 1 believe that that achieves greater clarity and simplicity and makes the Bill easier to understand, which is an important objective.
The revised clauses would have exactly the same effect as the existing Clause 5. Our amendments maintain the essential link between the control orders and the schedule. That will enable us to control any military goods or technology and also any goods or technology that might have any of the potential consequences set out in the table to the schedule.
Amendment No. 18 is simply subsections (4), (5) and (6) of the current Clause 5, again with some minor drafting improvements, which will be shown separately for clarity under a separate heading and side note that mentions "categories".
Amendments Nos. 32 and 35 are straightforward consequential changes needed to Clause 11 relating to the resolution procedure for orders made under what is now subsection (4) of Clause 5.
I hope that noble Lords will see these amendments as a modest triumph for the English language and clarity in respect of powers that we have already agreed are necessary. I beg to move.
Baroness Miller of Hendonmoved, as an amendment to Amendment No. 16, Amendment No. 17
Line 3, after first "to" insert "section (3A) and"
The noble Baroness said: My Lords, this very short amendment would insert a minor qualification to the new Clause 5 that the Government seek to introduce in place of the former Clause 5. The new clause requires one further important drafting amendment. Subsection (1) of the new clause imposes a limitation on the power to make control orders. That limitation is to be subject to the provisions of another new clause, at the moment temporarily numbered 5A.
However, now that your Lordships have passed Amendment No. 10, which incorporates an important new Clause 3A into the Bill, it is necessary that the limitation on making control orders that are contained in subsection (I) should also be made of that clause which also limits the powers to make a control order.
This is only a technical amendment, not one of principle. I imagine that the Government will have no problem in accepting it. I beg to move.
Lord Sainsbury of Turville: My Lords, we are happy to accept Amendment No. 17 as a consequential amendment.
On Question, Amendment No. 17, as an amendment to Amendment No. 16, agreed to.
On Question, Amendment No. 16 agreed to.
Lord Sainsbury of Turvillemoved Amendment No. 18:
After Clause 5, insert the following new clause—
"5A EXCEPTIONS FROM THE GENERAL RESTRICTION
(1) Section (General restriction on control powers) does not apply to the power to impose any controls if the control order which imposes them provides for its expiry no later than the end of the period of twelve months beginning with the day on which it is made.
(2) Section (General restriction on control powers) does not apply in relation to provisions of a control order which—

(a) amend an earlier control order: or

(b) revoke and re-enact (with or without modifications) provisions of an earlier control order,

unless they impose new controls or strengthen the controls previously imposed.
(3) In subsection (2) "an earlier control order" does not include an order made by virtue of subsection (1)."
On Question, amendment agreed to.
Clause 6 [Control powers: supplementary]:
Baroness Miller of Hendonmoved Amendment No. 19:
Page 5, line 19 at end insert ", but such disclosure shall not be permitted except—

(i) insofar as is necessary in order to monitor or enforce compliance with the order or any licence granted under it and shall (except when provided for the purpose of regulation or enforcement of export controls and the investigation or prosecution of alleged offences) only be permitted on condition that the recipient shall treat such material as confidential: or

(ii) in order to enable the United Kingdom to comply with its international obligations by virtue of any treaty, international agreement or its membership of any international organisation.

The noble Baroness said: My Lords, this amendment is similar to the one I moved in Committee, but I have altered it to take into account the objections that the Minister raised to it then. The original amendment is contained in paragraph (i) and seeks to limit the use and disclosure of information obtained under the section solely for the purpose of monitoring or enforcing compliance with the Bill.
I reminded the Committee that the human rights convention seemed to have been overlooked in the unlimited power of disclosure that the Secretary of State seeks for herself under Clause 6(1)(f).
In the notorious Guinness case, Ernest Saunders was convicted on the basis of information that he was compelled to give to the inspectors appointed by the DTI—the same department that is promoting this Bill and has defended this clause. That testimony was passed to the prosecution but was later held to be in breach of his elementary right against self-incrimination.
Paragraph (i) of this amendment ensures that records and information will be used for the purposes of the Bill and nothing else. There should be no disclosure to potential competitors, other government departments or NGOs. I pointed out to the Committee that this Bill will be largely administered by Customs and Excise. It will be wrong for the information
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demanded and obtained by it under this Bill to be passed on, for example, to the VAT department. The Minister told the Committee:
"The Government also wish to have the power to exchange information within Government…for the regulation and enforcement of export controls and investigation or prosecution of offences".—[Official Report, 7/2/02: col. 838.]
I entirely agree with that statement. Paragraph (i) of my amendment makes it clear that that is definitely a permissible purpose. My concern at the time of the debate in Committee on 7th February has been heightened by the kite recently flown by Downing Street when it suggested that information held by one government department should be freely passed around to other departments and agencies.
There are serious libertarian implications in that. If that facility is to be granted, it should be after full parliamentary scrutiny and debate. It should not be slipped in as a sub-paragraph to a subsection of a Bill which has a rather specific application. Next we shall see this provision cited as a precedent for further dissemination of private information that the Government have been given power to demand.
In Committee I also suggested that it would be wrong for the Government to pass that information on to foreign governments. I quote the Minister's words in an abbreviated form, also at col. 838 on 7th February:
"The Government require the power to obtain and share information…By virtue of its membership of a number of international organisations".
The Minister went on to give three examples. In withdrawing my amendment in Committee, I invited the Minister to put down a similar one on Report adding a provision about international agreements. I regret that he was not able to do so. Therefore, I have been left with no alternative but to reintroduce the amendment which already included a description of the proper reasons why the information could properly be shared within the Government which fully accords with the Minister's own reasons which he gave to me.
I have now added a saving about the United Kingdom's foreign obligations in order to meet the Minister's objections. Now that I have done so, I very much hope that he will find it possible to accept the amendment. I beg to move.
Lord Sainsbury of Turville: My Lords, this amendment was discussed in Committee on 7th February and is with us once again. It would place conditions on the Secretary of State's power to disclose information obtained through an order under the Bill, but it now has a provision under paragraph (ii) intended to allow disclosure of information where that is required by the UK's international obligations.
As I explained previously when we discussed this issue, the Government require the power to obtain and share information connected to export licensing issues for two reasons. By virtue of its membership of a

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number of international organisations, the UK is committed to disclosing certain information to those bodies. Specifically, under the UN arms register and the Wassenaar arrangement, we are required to provide details of the numbers of certain categories of military or dual-use goods exported each year. Paragraph (ii) of the amendment seeks to deal with that point, but it fails to do so because it does not apply to some commitments. The Wassenaar arrangement is one example. It would be unfortunate if, as a result of the amendment, the UK could not participate in or cooperate with some important international bodies simply because they did not fit into the description in the amendment. The Government also wish to have the power to exchange information within government—for example, with Her Majesty's Customs and Excise—for the regulation and enforcement of export controls and investigation or prosecution of offences.
The proposed amendment would restrict the uses for which the Government could share information simply to monitoring and compliance and require any such information-sharing to be in confidence. The result would be to prevent the Government from meeting their international reporting obligations. It would also prevent the Government from being able to assist authorities in overseas governments or authorities in enforcement of their own export controls, except in accordance with formal international agreements. The condition on confidentiality is of course unenforceable in respect of information disclosed to authorities outside the UK. Sharing information appropriately with other authorities is an essential part of supervision, investigation and enforcement generally. It is important to have the power to go to other countries and give them information when we believe that activities are taking place that would not be compatible with their views.
As for the concerns about the Human Rights Act and protecting disclosure on the grounds of commercial interests, those issues have been taken into account. The Bill itself is compatible with the Human Rights Act—an explicit statement to that effect was made by the Secretary of State. That statement, which is a statutory requirement under Section 19 of the Human Rights Act 1998, was included with the Explanatory Notes to the Bill. The Government need to share information with other departments for the purpose of making decisions about licences. There would be no improper disclosures.
In view of those reassurances, I invite the noble Baroness to withdraw the amendment.
9 p.m.
Baroness Miller of Hendon: My Lords, I moved a similar amendment at an earlier stage and took into account what the Minister said on that occasion. I am disappointed that he did not return with an amendment that took note of all of the relevant concerns. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendonmoved Amendment No. 20:
Page 5, line 24, at end insert—
"( ) It shall be a defence to any charge under subsection (1)(g) of an offence described wholly or partially by reference to the uses to which any goods, technology or technical assistance may be put that the person charged did not know and could not reasonably have been expected to know that there was a risk that the goods, technology or technical assistance in question would he put to such uses."
The noble Baroness said: My Lords, when I moved an identical amendment in Committee, I said that although I was not happy with the Minister's explanation why the amendment was not acceptable, I would read his remarks carefully. As he knows, I always read his remarks carefully. If anything, I am even more convinced of the need for the amendment.
I remind noble Lords of the reasons for what I described as a self-explanatory amendment.. I reminded the Committee of the notorious Matrix Churchill case, where tubes were supplied ostensibly for oil pipelines but it transpired that they were the cunningly disguised barrel of a so-called "super gun".
Clause 6(1)(g) empowers the Secretary of State to create criminal offences that will carry penalties—depending on which part of the intended regulation is breached—of an unlimited fine or an imprisonment of up to 10 years, or both. Past events have shown us that wholly innocent people can be unwittingly caught up and imprisoned and that they and their businesses can be completely ruined and their employees thrown out of work. It is for that reason that it is essential that they should have the defence that they did not know and—I stress this—that they could not reasonably have been expected to know about the use to which the export involved was going to be put.
In opposing the amendment in Committee, the Minister said:
"This is essentially a defence based on the level of reasonable knowledge about intended end-uses".—[Official Report, 7/2/02; col. 839]
Exactly, my Lords. I am glad that the Minister agreed with the point that I was making. He went on to say:
"The amendment is not required and is inappropriate…It would not be appropriate, therefore, nor indeed possible to provide in the Bill for a defence in respect of offences to be created in secondary legislation".
There is absolutely no justification or precedent for that statement.
The Bill empowers the Secretary of State to create offences attracting severe punishments. There is no reason why the same Bill should not indicate what defence or defences there may be. Of course, the Government prefer to rule by secondary legislation rather than with full parliamentary scrutiny that primary legislation receives, at least in your Lordships' House, but where the liberty of the citizen is concerned, it should not be left to the whim of Whitehall as to what defences a defendant may have. The Minister in his response prayed in aid the wording of the dummy regulation. He said,
"perhaps I can reassure the noble Baroness…that appropriate defences would…be available in respect of offences to be introduced in secondary legislation".

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I took the Minister's advice and read the secondary legislation. I can only wonder whether he had done so before he made that statement in Committee. That statement was contained in a brief that had clearly been prepared for him by his department. I quote Article 15, which is entitled "Offences and Penalties". It states:
"A person who contravenes a prohibition or restriction in (a) or (b) shall be guilty of an offence and liable on summary conviction to a penalty",
and so on. That is an absolute offence. There is no trace or hint of a defence of lack of knowledge. The regulation goes on in two further paragraphs to refer to a person "knowingly concerned" with certain actions,
"with intent to evade any prohibition".
At least to that extent the regulation is satisfactory because it does put the onus of proving both knowledge and intent on the prosecution, but it clearly illustrates that two types of offences are being created. Both are in respect of an alleged breach of the identical articles of the dummy order. The first is an absolute offence and the second involves the element of a defence available to a defendant. Nevertheless, a person could be entirely ruined by a conviction, even in a magistrates' court, and there is no justification for depriving him of a defence simply because the prosecution chooses to try him in a lower court rather than on indictment.
The dummy order does not live up to what the Minister claimed for it. I firmly believe that if Parliament is going to allow the Secretary of State to create criminal offences, the same legislation that gives those powers should prescribe the limits of those powers and should not leave it to the Secretary of State to decide for himself or herself what limits—indeed, whether there should be any limits at all—there are on how they are to be exercised. I beg to move.
Lord Bach: My Lords, the noble Baroness reminded us that this matter was debated in Committee. On that occasion she graciously agreed to withdraw her amendment but gave a clear indication that she might return to it on Report. She has certainly done so. Clearly, she was not reassured by our response on the previous occasion and, therefore, the amendment is the same as it was last time. The burden of the argument that I shall put forward as to why the amendment is not required is essentially the same as before.
First, I want to provide some background as to how the current regime works so that it will be clear, I hope, why the amendment is not appropriate on the face of the Bill. The first point to make is that the goods and technology that are subject to control are all set out in secondary legislation, in particular under the 1939 Act and in the draft dummy orders which we published in October. Prohibited destinations are also set out in the commitments list which is included in the annual reports on strategic export controls. Such information is also available on our website.
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The details of the items which are subject to control and prohibited destinations must be in secondary legislation because they are obviously subject to change. The offences and, of course, the penalties for those offences are also set out in secondary legislation. They, too, may change over time subject to parliamentary scrutiny but, on the whole, they are fairly constant. However, that is not to say that it might not, at some stage, be the Government's wish to increase potential penalties, particularly if certain offences became more common and we needed to deter them or if it was generally felt that penalties should be increased because of greater risks, as, for example, following the atrocity on 11th September last year.
With those offences go legitimate defences, and such matters also belong in secondary legislation. Frankly, it would be a nonsense to separate the offences set out in secondary legislation and the defences set out in primary legislation. The draft dummy orders which we published in October set out the various requirements related to persons either knowing or being informed about intended end uses. In the case of dual-use items, which are controlled by the EC Dual-Use Items Regulation as applied by UK regulations made under the European Communities Act 1972, offences arise only where the person concerned has been informed by government or is aware or suspects that an item is or may be intended for use in connection with weapons of mass destruction.
In the case of suspicion, the prohibition is displaced where the exporter has made all reasonable inquiries as to the proposed use of items and is satisfied that they will not be used in connection with a weapons-of-mass-destruction programme. The language used elsewhere in the dummy orders makes the nature of offences and defences quite clear. That was explained in Committee and examples were given. Including such provisions in secondary legislation does not weaken the defences available to those accused of offences.
A further point which is perhaps worth making is that the Bill will achieve a long-overdue consolidation and rationalisation of powers and procedures for national and EU controls. That will be one of the many benefits which we hope to achieve with the Bill. However, the amendment would have unfortunate consequences in relation to our EU commitments. The words,
"could not reasonably have been expected to know",
are simply not compatible with the end-use control provisions in the EC regulation to which I have just referred.
One consequence of the amendment could be to undermine our intended rationalisation of controls by making it necessary to continue to rely on the European Communities Act 1972 to implement EU controls. We believe that that would be unfortunate. It would also mean that the amendment would not have any effect on such controls and defences to offences created to enforce them under a 1972 Act order.
The basic point that we wish to make—we make it again—is that these are specific matters which have always been set out in secondary

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because they are detailed and may change over time. It is right to continue with that practice and, we believe, quite mistaken to seek to introduce defences on the face of the Bill. That is our primary argument.
The second argument is one to which the noble Baroness referred in moving the amendment. It concerns the offences set out in the dummy order. She referred, first, to Article 15(1) and quoted from it as follows:
"A person who contravenes a prohibition or restriction",
in various articles. She is right. That is an absolute offence. Article 15 ensures that there is consistency between the treatment of export control offences under the Customs and Excise Management Act 1979 and the new offences created under powers in the Bill. Like Section 68 of the 1979 Act does in respect of the export of goods, the order prohibits the electronic transfer of control technology. It is a matter of fact. It is possible for a person to commit such an offence without knowledge. The point that I want to make is that it is a much lesser offence and it is subject to a much lower penalty than those offences that appear under Article 15(2) and 15(3). The maximum sentence for such an offence is a level three fine.
The chance of people being prosecuted for the absolute offence of contravening a prohibition or a restriction is extremely unlikely. The suggestion that somehow someone's reputation would be damaged for ever by doing that is inconceivable. The answer to the point raised by the noble Baroness is that serious offences in Article 15(2) and 15(3) have in them the word "knowingly". That means that the defendant does not in any sense have to prove his innocence, but that the prosecution, as in all criminal trials, has to prove that the defendant knew about the transfer of the software technology in Article 15(2) and 15(3):
"Any person knowingly concerned in the provision, or attempted provision, of technical assistance related to the supply…of any goods, with intent to evade".
In other words, anyone charged with the serious offences under Article 15(2) and 15(3) is protected by the natural defences that follow from the need for the prosecution to prove knowledge.
On the summary offence under Article 15(1), that is a contravention, a prohibition or a restriction which is not likely to be prosecuted. If it were, the maximum sentence is a level three fine. It is an absolute offence, as there are other absolute offences in the English criminal law.
That is the second reason why we argue that the noble Baroness is wrong in wanting to amend the clause in this way. The first reason is that it is in secondary legislation and should remain there, and the second is that no injustice is caused to any defendant by the clause as it now stands. Therefore, I ask her to consider what I have said and to withdraw her amendment.
9.15 p.m.
Baroness Miller of Hendon: My Lords, I am definitely disappointed by the Minister's reply. I do not believe that that will surprise him, even though he
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gave a lengthy reply. I made the point that there ought to be a defence if the person charged did not know or could not have known, or whatever. It may be that the Minister is right in saying that the words would not be acceptable according to some other treaty, but am sure that the Minister and the department could have found words that would have been acceptable.
I understand that the Minister does not want the defence on the face of the Bill, but it seems to me extraordinary that regulations can create offences and that the offences can incur—never mind what the Minister says, because it is clearly in he Bill—penalties of up to 10 years just like that. That is to be done by regulation. The Minister suggested that the penalties could be even greater and that that is why the matter needs to be covered by regulation.
It is a sad day for the British legal system and for parliamentary democracy when clauses such as this can be dealt with by secondary legislation. It is a poor show. I have listened to what the Minister has said and I can see that I shall get no further with it. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendonmoved Amendment No. 21:
Page 5, line 35, at end insert—
"(3) An order under any of the preceding provisions of this Act shall (unless there shall be in force a general order applying the requirements set out in this subsection) make provision—

(a) for a prescribed form of application in which descriptive details of the goods or technology in question, their value and the identity and address of the proposed consignee and, if known, both the potential uses and the actual uses by the consignee are set out;

(b) prescribing the time after receipt of an application in which further information can be sought by the liter sing authority to supplement the information contained in the application;

(c) prescribing a time (which may be varied between different types of applications or between different types of goods and technology) after the receipt of the application and any further information when an application shall he deemed to have been granted unless refused;

(d) for written reasons for refusal of any application to be given to the applicant, provided that if the refusal is for security reasons that fact should be stated.

(e) for reasons under paragraph (c) above to contain sufficient information to enable the applicant, if so advised to challenge the reasons on appeal; and

(f) prescribing an appeals procedure, either by way of a hearing or by written representations or both and for reasons for the dismissal of any appeal, subject to security considerations being made known to the exporter in writing.

(4) In any case where a licence is deemed to have been granted pursuant to subsection (3)(c) the Secretary of State shall provide the applicant on request with a written document confirming that the export of the goods or technology is authorised."
The noble Baroness said: My Lords, the genesis of the Bill is unarguably the gaps in the law—a law that has been in existence since 1939—that were revealed by the notorious Matrix Churchill case and the remedies suggested in the Scott report following the inquiry that was set up by the previous government.

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The report made a number of specific recommendations that were accepted by all parties. I stress the words "accepted by all parties" because I have just noted that I was reported in the Official Report of the debate in Committee as saying that they were "expected by all parties". From time to time, if one does not hand in one's notes quickly enough, mishears unfortunately occur.
I said to the Committee that when I read the Bill I was surprised that nowhere in it were the basic Scott recommendations carried into effect. My former surprise has now been compounded by the vehemence with which the Government rejected my amendment. I shall not trouble your Lordships by going through each of the five paragraphs (a) to (f) and subsection (4) of the amendment. They are all self-explanatory and I emphasise that they follow the recommendations of the Scott report which the Government quite clearly do not wish to put into effect in primary legislation. I quote what the Minister said in his reply to the Committee:
"The Government set out their views about what are essentially procedural matters in the White Paper on Strategic Export Controls, published in 1998".—[Official Report, 7/2/02; col. 847.]
Indeed, they did.
The Minister quoted from the White Paper, which states:
"The Government considers that there could be merit in setting out the basic elements of the licensing process in primary legislation, but not the detailed procedures. The latter are, in the Government's view, best included either in secondary legislation, or in guidance material, as at present, or a mixture of the two".
My amendment clearly and unequivocally does what the Government suggested in the White Paper. It sets out the basic elements of a licensing regime without being prescriptive of the detail. The amendment says that an order shall make provision for the five factors set out in paragraphs (a) to (e). Those provisions are in general terms, not in detail, which the amendment leaves specifically to the order that will be made.
I shall deal with some of the specious arguments that have been made as the Government's reasons for rejecting the Scott proposals which, in opposition, they endorsed. The first refers to licensing by default. That is the Government's default in dealing with a licence application. The Minster suggested that there was a risk of licences being granted contrary to the United Kingdom's international obligations, or of more licences being refused. The fact that there is a time limit will concentrate the Department's mind on the matter, and there is nothing to prevent regulations to provide for the applicant to grant additional time to avoid a refusal. I am sure that the parliamentary draftsman who framed the regulations could easily cope with the simple provision. If he cannot, I know someone who can.
The second argument refers to security provisions that might preclude the giving of detailed reasons for a refusal, but as the Minister conceded, that aspect was covered by paragraph (d) of the amendment. Scott similarly covered the same point. Thirdly, the Minister
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said that the appeals procedure is already set out in the regulations. I agree that the regulations more or less cover the point that I am making in paragraph (e), but there is no reason why the Bill should not prescribe that such regulations should be made and kept in place, and not arbitrarily cancelled at some time without something adequate being put in its place.
Fourthly, it was said that regulations may need to be changed over time. I agree, but there is nothing in the amendment saying that they cannot be changed and there is nothing that modifies the wide regulatory power that the Secretary of State is given under subsection (1) of the clause, which states:
"An order under any of the preceding provisions of this Act may—make provision"
and goes on to list a menu of eight items which the Secretary of State can order.
All that my amendment does in general terms is specify the criteria for any order. It asks for a prescribed form to be used, which could be changed from time to time. It asks for the Secretary of State to set a time limit for seeking supplementary information; it does not specify the length of that time limit, nor does it specify the time after which an application is deemed to be granted if it has not actually been refused, and so on.
It seems that from the Minister's remark about regulations needing to be changed from time to time, he has read my amendment as if it were prescribing the details of the regulations themselves, which I hope your Lordships will see does not. I said in Committee that I considered the amendment to be a test of whether the Government accepted the Scott recommendations or whether they wanted to depart from them. Clearly, now that they are in office, they want to depart from those recommendations that they accepted while in opposition.
More than that, now that they are translating their own White Paper into legislation, they are rejecting the principles that they set out there as well. This is a case of the Government propose, but Whitehall disposes, and it is time that the Government translated their publicly announced policies into legislation. I urge them to be consistent. They should accept this nonpartisan amendment and put into place the procedures which they previously said they espoused. I beg to move.
Lord Bach: My Lords, I am delighted that the noble Baroness described her amendment as non-partisan, but I noted that there was quite a lot of partisanship in her speech. However, perhaps I shall put that on one side.
I hope that my response to her amendment will not be vehement, but I shall try to reply with some force and perhaps a little common sense, too. We do not accept that such detailed procedural matters as she proposes belong in the Bill. There is a fundamental difference in approach with regard to licensing by default, represented by her Amendment No. 21, which we cannot accept.

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As with the earlier version of this amendment, Amendment No. 21 seeks to add a number of detailed matters to the Bill. It requires orders to make provision for a prescribed form of licence application; a time within which any additional information must be sought by the licensing authority; a time after which a licence would be deemed to have been granted unless refused; written reasons for the refusal of a licence application which should be sufficient to enable the applicant to make an appeal; and for prescribing an appeals procedure. Proposed subsections (3)(c) and (4) would require the Secretary of State, in effect, to issue a licence by default if a decision had not been made within a prescribed timescale. Those various provisions concern procedures or, in the case of licensing by default, a fundamentally different approach to export licensing.
As was explained in Committee, the 1998 White Paper on Strategic Export Controls set out our views on procedural matters. We stick by that judgment, which was that the basic elements of the licensing process should be provided for in primary legislation but not detailed procedures. Indeed, the basic elements are set out in Clause 6. That clause contains powers to make provisions relating to prohibited activities, exemptions, record keeping, the provision of information and so forth. It is comprehensive in what it enables us to include in orders. There is absolutely no need to include the sort of detail proposed in subsection (3) of the amendment.
Let us look again at the various subsections of the amendment. We do in fact have standard licence application forms, but that does not need to be provided for in primary legislation. When we discussed this earlier, the noble Baroness said that such applications,
"would mean that there would be no question of delay on the grounds of inadequate details being supplied".—[Official Report, 712/02. col. 846]
That is not quite right. For example, it is necessary to obtain details in addition to information on a licence application form, so the intended effect would not be achieved because there would be cases where further clarification and further details might be required. That is the nature of the process, which needs to be thorough.
Prescribing the form of application brings home the point about it not being appropriate to include powers to prescribe detailed matters in the Bill. The form of licence application is an administrative matter, plain and simple.
I move on to the issue of licensing by default or, as it is expressed, exports that are "deemed" to be permitted. The White Paper also made clear that there were unacceptable risks associated with that. We need to be able to assess all licence applications against guidance that will be published under Clause 7 of the Bill and laid before Parliament. We need to be able to ensure that licences are granted in accordance with the UK's international obligations and commitments. That cannot be achieved by a casual and risky licensing by default approach. While we accept the need to process export licences expeditiously, we should not put pure speed of processing licence applications above much more important objectives. As was said before, and I repeat, a licensing by default approach would result in
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many more licences being refused because that would be the only responsible approach if an arbitrary processing deadline was imposed.
Our view was shared, quite rightly, by the last Conservative government in their response to the report of the noble and learned Lord, Lord Scott. I wart to reassure the noble Baroness—this is perhaps what is really behind her amendment, if I may be so bold as to say—that we try to deal with applications expeditiously. I know from her Second Reading speech that the noble Baroness's concern is about delays which sometimes occur. We work hard to try to reduce processing time. In particular, all long-standing cases are now regularly reviewed to ensure that they are progressed as quickly as possible. Nevertheless it is true that in a small proportion of particularly difficult cases—it should not he underestimated how difficult some cases are to determine—delays can occur.
We already give written reasons for refusing a licence application. However, in some cases, for reason, of national security, only a broad explanation can be given. We write to ensure that there is sufficient information for an unsuccessful applicant to make an appeal. The dummy orders we published last October provide for appeals. Article 14 on the export of goods, transfer of technology and provision of technical assistance and Article 8 on trade in controlled goods of the dummy draft order include such provisions.
We are certain that the Bill will enable us to modernise our existing export control regime. That is the purpose behind it. We think that it would be a mistake to try and attempt to include a number of specific procedural powers. I hope it will satisfy the noble Baroness if I repeat that it is our intention to try and make sure that there are fewer and fewer delays in processing export licence applications. I therefore invite her to withdraw the amendment.
9.30 p.m.
Baroness Miller of Hendon: My Lords, I am grateful to the noble Lord for his response. I shall accept what he says that there are fewer and fewer delays. I said that it was a non-partisan amendment. I am surprised that the noble Lord thought it was not. He has obviously not been opposite me enough. If I had meant to be political, I think he would have known the difference. Having said that, I can see that I shall not get anywhere with the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Sainsbury of Turvillemoved Amendment No. 22:
After Clause 6, insert the following new clause—
"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."

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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.
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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,
"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.
On Question, amendment agreed to.
Baroness Miller of Hendonmoved Amendment No. 23:
After Clause 6, insert the following new clause—
"TEMPORARY EXPORT LICENCES
(1) Any order made under section I 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."
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

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would also cover the temporary export of cultural items that are included in the Bill; otherwise, where is such a power authorised?
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 he 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
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goods in a number of countries—including major trading partners such as the US, the EU, Canada, Australia, New Zealand and Japan—without the need to apply for an individual licence. The licence ensures that, for a substantial number of the cases that were of concern to the noble Baroness, there is no question of any delay. In addition, the Government issue temporary individual licences, details of which are given in the annual report under the heading for the relevant country.
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.
Baroness Miller of Hendon: My Lords, I was interested to hear the Minister say that for licences of this kind, there is no delay. I am pleased to hear that I find it extraordinary that, on our side, we are lobbied to do something about temporary licences because, we are told, there is a huge delay. I accept what the Minister said, and I am sure that he will look into the matter in view of my comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Guidance about the exercise of functions under control orders]:
Lord Redesdalemoved Amendment No. 24:
Page 5, leave out lines 44 and 45 and insert—
"Where—

(a) the description of thing being controlled is within one or more of the categories mentioned in the Schedule; or

(b) the activity being controlled could have one or more of the possible consequences that are of a kind mentioned in the Table in paragraph 3 of the Schedule,

the guidance required by subsection (3) must state that regard shall be had, when exercising such powers, to—"

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The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Lord Redesdalemoved Amendment No. 25:
Page 6, line I, after "development" insert "including those pertaining to the study, conservation, protection, enjoyment and sustainable use of heritage resources of cultural interest"
The noble Lord said: The amendment is in my name and that of the noble Lord, Lord Renfrew of Kaimsthorn, who could not be present this evening.
I shall speak briefly on the issue; we spoke about it at length during the previous stage of the Bill. The purpose of the amendment is to include heritage as a resource, not under the title of sustainable development but as a subject in its own right. We do it because we saw the opportunity to do so; I can put it no more clearly than that. I suspect, however, that the Minister will come up with many reasons why heritage should not be included. I beg to move.
9.45 p.m.
Baroness Anelay of St Johns: My Lords, I rise to express my support for this amendment. In Committee, I recall the noble Lord, Lord Sainsbury, rather teasingly saying that whenever the expression "weapons of mass destruction" was mentioned I suddenly thought of heritage and cultural objects. As the noble Lord, Lord Redesdale, said, one of our objectives throughout these proceedings has been to ensure that a Bill, which, in greater part, does deal with weapons of mass destruction but which, in its minor part, deals with relevant issues to the DCMS, should pay due respect and attention to such issues. That is especially so because when the legislation was introduced cultural organisations outwith Parliament were not perhaps fully aware of the impact of the Bill upon them, or of how a smaller part of the Bill affects culture. Such issues are important to the cultural world.
I am grateful to the noble Lord, Lord Redesdale, for returning to the matter. I rather suspect that we shall not move much further on the issue tonight. However, on behalf of my noble friend Lord Renfrew, I can say how much we have appreciated the conduct of the Government throughout the proceedings on the Bill. They have made efforts to recognise heritage in its proper place during our discussions, even if it did not quite receive the attention that it deserved both in the other place and in the Explanatory Notes before it came to this House.
Lord Davies of Oldham: My Lords, I shall say straightaway that I welcome the opportunity to debate the amendment, even if I do not welcome its contents. After all, it has given us culture vultures the chance to play our part in the proceedings. As usual, the all-star cast is in action—apart, that is, from the noble Lord, Lord Renfrew, who, regrettably, as he indicated, was not able to participate in this crucial part of the debate.
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The noble Lord, Lord Redesdale, said that he did not expect to make too much progress with the amendment. He presented some attractive arguments but, in our view, not quite winning ones. It is not that we do not share with the noble Lord and the noble Baroness, Lady Anelay, the objective to ensure that we protect the cultural heritage of this country, and various aspects of it that we know are under threat through the practice of illicit trade. However, we do not believe that this Bill is the way to achieve that aim, or that the amendment now before the House will advance the cause that we all share.
I should make it absolutely clear that the Bill provides for the export control of objects of cultural interest. It is not designed to solve the problem of illicit trade in cultural goods, which, as I am sure noble Lords will agree, is best addressed by international agreement. To this end, noble Lords will recall that I said in Committee on 4th March that we expected accession to the 1970 UNESCO convention to take place very soon. The noble Baroness, Lady Anelay, took my words at face value and, as we would expect, has been pursuing the issue through Written Questions.
I should tell noble Lords that on 20th March my noble friend Lady Blackstone stated in a Written Answer to the noble Baroness, Lady Anelay—Official Report; col. WA 157—that we expect to publish a Command Paper by the end of April, together with an explanatory memorandum, as is the custom before acceding to a treaty. I should remind noble Lords that, thereafter, it will lie for 21 sitting days before action is taken to bind the United Kingdom. For those reasons, the Government expect to achieve their aim to accede to the convention by July.
As I understand it—I shall be corrected if I am wrong—the intention behind the amendment is that the Government would apply additional criteria in exercising export controls so that a licence would not be granted for an object that has been looted from an archaeological site here, or overseas. We applaud those sentiments and recognise their strength. We are committed to fighting the very real problem of illicit trade. However, we are not convinced that the Bill is the appropriate mechanism to protect and conserve archaeological sites and their future sustainable use for study and enjoyment. As I said earlier, the way to tackle the issue is through international agreement. The effort that we are making to ensure that we accede to the 1970 UNESCO convention is the most obvious and tangible step forward, and one that we shall be taking shortly to achieve that end.
On that basis, I hope that the noble Lord will recognise that we subscribe to his intentions but that we do not believe that the amendment will advance the cause. However, we have in mind a way in which we will be tackling the issue thoroughly and I hope that therefore he will think in terms of withdrawing his amendment.
Lord Redesdale: My Lords, I thank the Minister for his reply. It is most welcome to hear of the progress of the UNESCO convention. His answer raised one

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particular issue, and one to which I am sure we will return; that is, ensuring that adequate staff are provided to police the export controls on objects of cultural interests, especially looted archaeological finds. However, taking the Minister's reply in the spirit in which it was given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Redesdalemoved Amendment No. 26:
Page 6, line 10, leave out subsection (6) and insert"
( )— Changes made to guidance

(a) required by subsection (3) which includes guidance about the consideration to be given to—

(i) issues relating to sustainable development; or

(ii) issues relating to any possible consequences of the activity being controlled that are of a kind mentioned in the Table in paragraph 3 of the Schedule; or

(b) referred to the consolidated criteria relating to export control licensing decisions announced to Parliament by the Secretary of State on 26th October 2000

shall require a draft of that change to be laid before and be subject to a resolution of each House of Parliament.
( ) Changes to any guidance other than those described in the subsection above shall be laid before Parliament and published within 28 days."
The noble Lord said: My Lords, one of the main concerns of the Scott report was that existing government powers lack,
"the provisions for Parliamentary supervision and control that would be expected and are requisite in a modern Parliamentary democracy".
In Clause 11, the Bill addresses that concern by setting out the role of Parliament in approving or refusing orders made under the authority of the Bill. Depending on the nature of the order, that may involve either the draft or delayed affirmative resolution procedure or the negative resolution procedure. However, that element of oversight is not extended to cover changes to the guidance. In such cases the Secretary of State is required only to inform Parliament after the event.
Where the nature of the amendment to guidance is purely dministrative—for example, with regard to the procedures to be followed in submitting a licence application—that level of oversight is appropriate. Where guidance relates to changes to export licensing criteria, it is not sufficient.
The purpose of the amendment is to ensure that when changes to guidelines refer to export criteria, those will require prior approval by both Houses of Parliament by the affirmative resolution procedure. Where the guidelines refer to other matters—for example, licensing procedures—the Secretary of State will simply have to inform Parliament within 28 days. I beg to move.
The Deputy Speaker (Lord Brabazon of Tara): My Lords, I should point out that if the amendment is agreed to, I cannot call Amendment No. 27.
Lord Sainsbury of Turville: My Lords, the amendment would have the effect that any changes to guidance relating to the general principles to be followed when exercising licensing powers would be subject to parliamentary approval.
As the House will know, Clause 7(8) states that the consolidated criteria represent guidance which fulfils the duty laid upon the Secretary of State in Clause 7(3) to give guidance about the general principles to be followed when exercising licensing powers.
As I have explained on previous occasions in the House, the consolidated criteria derive to a very great extent from the European Union code of conduct on arms exports, which is an international agreement. It would not be right for governmental commitments entered into following negotiations with our international partners to be overturned by Parliament and indeed were Parliament to have a capacity to do this, it would make it virtually impossible for the Government ever to negotiate such international agreements.
I realise that the amendment has been tabled out of a desire to ensure that no future government could weaken the guidance on which export licensing decisions are based without the approval of Parliament. However, I would remind noble Lords that Clause 7 places a statutory obligation on government to include within guidance guidance relating to sustainable development and the matters listed in the table of consequences in the schedule to the Bill.
This obligation is in fact stronger in relation to sustainable development than the previous situation under the Bill. In earlier versions of the Bill, it would in theory have been possible for a future government to alter the schedule by secondary legislation and thus, for example, give no further attention to sustainable development.
Clause 7 now requires the Secretary of State to give guidance and it also requires that guidance to address sustainable development and the schedule table issues. As noble Lords may observe, there is no provision in the Bill for Clause 7 to be amended short of by primary legislation. Thus there are already limits on the extent to which the Government are free to alter the guidance on the general principles they follow when exercising licensing powers.
The proposed amendment also seeks to ensure that any guidance under Clause 7 is laid before Parliament and published within 28 days. Yet, as I explained in Committee, the Government would be subject to legal challenge if they were to make a licensing decision on the basis of unpublished guidance. Hence the Government are unable to use any guidance before it is published, providing a powerful incentive for prompt publication of guidance relating to the exercise of their licensing powers.
As concerns other guidance relating to export licensing functions, this is typically published to exporters by way of the Export Control Organisation

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website. We would expect to do this simultaneously with laying the guidance before Parliament and see no need to make statutory provision for this.
For those reasons, I invite the noble Lord to withdraw the amendment.
Lord Redesdale: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 27 and 28 not moved.]
Clause 8 [Annual reports]:
[Amendment No. 29 not moved.]
Lord Campbell-Savoursmoved Amendment No. 30:
After Clause 8, insert the following new clause—
"DEFENCE EXPORTS SCRUTINY COMMITTEE
(1) There shall be a Committee, to be known as the Defence Exports Scrutiny Committee (in this section referred to as "the Committee") to examine United Kingdom defence export licence applications and the licensing process.
(2) The Committee shall consist of nine members—

(a) drawn both from the members of the House of Commons and from the members of the House of Lords; and

(b) none of whom shall be Ministers of the Crown.

(3) The members of the Committee shall be appointed by the Prime Minister after consultation with the Leader of the Opposition, within the meaning of the Ministerial and other Salaries Act 1975 (c. 27); and one of those members shall be so appointed as the chairman of the Committee.
(4) Schedule 2 to this Act shall have effect with respect to the tenure of office of members of, the procedure of and other matters relating to, the Committee; and in the Schedule "the Committee" has the same meaning as in this section.
(5) The Committee shall make an annual report on the discharge of their functions to the Prime Minister and may at any time report to him on any matter relating to the discharge of those functions.
(6) The Prime Minister shall lay before each House of Parliament a copy of each annual report made by the Committee under subsection (5) together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
(7) If it appears to the Prime Minister, after consultation with the Committee, that it is evident that the publication of any matter was exempt under the Code of Practice to Government Information, the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament."
The noble Lord said: My Lords, the amendment is one of three dealing with aspects of prior scrutiny. It provides for the establishment of a defence exports committee which would be subject to the arrangements set out in Amendment No. 41, which would in turn introduce a new Schedule 2 to the Bill.
I do not intend again to set out the case for prior scrutiny by a defence exports scrutiny committee. The case was fully debated at cols. 860–874 of the Official Report of 7th February 2002. However, I shall take the opportunity to update the House and those outside campaigning on this issue on developments over recent weeks.
The amendment was originally moved on 7th February. At that stage the Minister undertook to consider the proposal, based on the ISC model. Since
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then, extensive lobbying of Ministers has taken place. An Early Day Motion was introduced in the other place which read:
"This House believes that specified defence export licence applications should be subject to prior scrutiny by a committee comprising Honourable Members of Parliament".
To date the Motion has been signed by 217 Members of—Parliament—that—number—will—increase substantially over the next couple of weeks—20 of whom are former Labour Ministers of the Crown and five of whom are current chairmen of Select Committees.
Extensive work has been carried out by lobbies outside Parliament, in particular Saferworld, which supports the amendment, despite correspondence suggesting the contrary which I understand has been circulating in some departments.
A meeting was convened with the Trade Secretary, Patricia Hewitt, who promised to consider the amendment. Discussions took place with Clare Short, who promised to consider it. A meeting was arranged with the Foreign Secretary, Jack Straw; he promised to consider it. A meeting of the Quadripartite Committee was convened. Jack Straw gave evidence to that committee. He referred specifically to this amendment and said that it was being seriously considered by the Government. A further meeting was convened with the Overseas Development Secretary, Clare Short, who undertook again seriously to consider it.
Over the weeks, a number of discussions held with some members of the Quadripartite Committee have taken place on the substance of the amendment. I then met the noble and learned Lord, Lord Scott of Foscote. With his permission, I shall quote from a letter that he wrote to me on this amendment. He stated:
"I think the constitutional objections that in the course of the second reading debate I voiced about prior scrutiny (quoted by Lord Sainsbury: see Hansard p. 872) have little, if any, application to the proposed function of your Defence Exports Scrutiny Committee.
The committee would not, as I read the proposal, represent Parliament. It would be appointed by the Prime Minister and would report to him, not to Parliament—at least not directly. Its function would be akin to that of a Special Adviser."
He went on to state:
"Subject to that, I cannot see any constitutional objection to the Prime Minister appointing a number of Parliamentarians to act as Special Advisers to the executive on export licensing decisions—which, in effect, is what your proposal comes to".
There were then further discussions with the Foreign Secretary, Jack Straw, and again he undertook to consider further the substance of the proposed amendment to the law.
Ann Clwyd, a colleague of mine in the other place, had a meeting with officials in Downing Street, and I also followed that up with a further meeting with a Downing Street official to arrange for a briefing of the Prime Minister specifically on this amendment. I understand that he has been briefed.
I met the Defence Manufacturers Association and I understand that while some of its members have expressed concern about the Quadripartite Select

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Committee's original proposals, others support the DESC compromise proposals. We are also trying once again to meet Patricia Hewitt, the Trade and Industry Secretary, over the next week. Indeed, I hope to meet my noble friend the Minister at the Dispatch Box today to discuss the matter.
I believe that there is strong support throughout the system for this proposal. It is based on a compromise, but it is a compromise that will work. I say that it will work on the basis of my own experience on the Intelligence and Security Committee. We have not been given any guarantees by the Government, nor do we expect them at this stage. The Government are clearly listening and consulting, and that is all I ask for at this stage.
The debate goes on and I hope that by Third Reading we will have a positive response. I do not expect a substantive response on the amendment today, but it will be interesting to hear what my noble friend has to say. I beg to move.
10 p.m.
Lord Sainsbury of Turville: My Lords, I shall speak to Amendments Nos. 30 and 41 because they cover substantially the same ground.
Lord Campbell-Savours: My Lords, I was advised that we may have some procedural difficulty with that. I was intending to move Amendment No. 31 separately, so my noble friend may wish to be very brief in replying to the first amendment.
Lord Sainsbury of Turville: My Lords, perhaps I may reply generally and we can take matters from there.
Before turning to more detailed points, I thank the noble Lord, Lord Campbell-Savours, for the care that he has taken with his proposal and his amendments. I am also grateful to him for the trouble that he has taken to discuss his proposal with a wide range of bodies and to take their concerns on board.
In particular, I noted when the noble Lord tabled these new amendments, as he has just explained, that he has taken particular care to address industry concerns in relation to commercial confidentiality by introducing a reference to the code of practice to government information. I also noted that he has taken steps to consider the possibility of delay during the Recess and the care he has taken to consider sensitive information in all its forms. The Government recognise that the noble Lord has made very great efforts to provide a compromise and an innovative way forward, and I pay tribute to his efforts in this area.
I also express my personal gratitude to the noble and learned Lord, Lord Scott, for making me aware of his views on this proposal. I noted with great interest his view that the constitutional objections to prior scrutiny he had voiced in Committee had "little, if any, application" in this case as the Committee would not represent Parliament or, "at least not directly", report to it. As many noble Lords will remember, when we
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last discussed this important issue I felt that the constitutional issues raised by the noble and learned Lord, Lord Scott, were a major concern, so I was very interested to see that he has said that he,
"cannot see any constitutional objections to the Prime Minister appointing a number of Parliamentarians to act as Special Advisers to the executive".
However, I should like to draw the attention of the House to another point made by the noble and learned Lord, Lord Scott. In his letter commenting on the proposal now before the House, he added that he thought,
"one of the most important functions of a Select Committee is that of holding the Government to account for its—executive acts or omissions, so I think there would be some conflict of interest if a member of your"—
he means the noble Lord, Lord Campbell-Savours—
"committee were also a member of, say, the Trade and Industry Committee or Quadripartite Select Committee".
This comment touches on a concern that we had had about the proposal. Were a defence exports scrutiny committee to be established, we have some concerns about how it might inter-relate with the Quadripartite Committee in another place. The defence exports scrutiny committee would almost certainly need, and might well seek to take on, major parts of what is now the role of the Quadripartite Committee. For example, the defence exports scrutiny committee would almost certainly need to undertake a degree of retrospective scrutiny of both individual cases and strategic export licensing policy, if only to investigate and discuss why their advice was, or indeed was not, being followed by the Government. At its extreme, this could even be seen to cast doubt on the exact nature of the continuing role of the Quadripartite Committee. Moreover, in merely practical terms, it would also present difficulties were the Government to be required to account for their actions 10 two different committees.
That brings me to a related concern that we have had about this committee. One of its key features—the fact that it would meet in secret—also poses a potential problem. As the House will know, the Government have, wherever possible, sought to bring greater democratic involvement and accountability to the export licensing process and have tried, to bring about greater transparency wherever possible.
One of the key achievements of the Bill will be to increase transparency and accountability. Given the potential for overlap between this committee and the Quadripartite Committee, we remain concerned in particular about the potential impact such a new committee might have on current levels of transparency and accountability.
These are only some of our concerns. The noble Lord may say that these and other concerns could be addressed. But these are issues that need careful thought. That brings me to my conclusion. We have given the noble Lord's proposal careful consideration and this has served to demonstrate both some possible attractions and some significant problems. I would add that it has shown that the issues, both of principle and of detail, are not straightforward.

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For that reason, I ask the noble Lord whether he is willing to withdraw his Amendment No. 30 and not to move Amendment No. 31. In asking that of him, I stress that we have taken legal advice and we are clear that the Government, were they to decide to take this approach, would be able to set up a defence exports scrutiny committee in all its essentials, without a requirement for new legislation.
However, we feel that it is essential to get to the bottom of the important issues that I have raised and indeed some other serious concerns, including legal concerns and points of detail—such as the nature of the supplementary information that the committee might request. That will take time and, given the vital issues covered by the Bill, the Government would be reluctant to see it delayed still further. It is vital that we can start the process of consultation on the secondary legislation and thereafter implementation as soon as possible so that we can be assured that the UK has the export controls that it needs in these uncertain times.
However, I should like to assure the noble Lord that the Government intend to continue their examination of his proposals and their consideration of how best to achieve greater accountability and transparency in the export licensing process. I would add that I hope to meet with him soon to discuss his proposals further.
Lord Campbell-Savours: My Lords, I am grateful to my noble friend for his response. I agree with the reservation expressed by the noble and learned Lord, Lord Scott of Foscote, and the caveat that he entered. In moving the next amendment, perhaps I may deal more substantially with the issue that my noble friend raised in his reply. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell-Savoursmoved Amendment No. 31:
After Clause 8, insert the following new clause—
"DEFENCE EXPORTS SCRUTINY COMMITTEE (NO. 2)
(1) There shall be a Committee, to be known as the Defence Exports Scrutiny Committee (in this section referred to as "the Committee") to examine United Kingdom defence export licence applications and the licencing process.
(2) The Committee shall consist of nine members—

(a) drawn both from the members of the House of Commons and from the members of the House of Lords; and

(b) none of whom shall be Ministers of the Crown.

(3) The members of the Committee shall be appointed by the Prime Minister after consultation with the Leader of the Opposition, within the meaning of the Ministerial and other Salaries Act 1975 (c. 27); and one of those members shall be so appointed as the chairman of the Committee.
(4) The Prime Minister may by order make provisions as to the tenure of office, members of, the procedure of and other matters relating to, the Committee.
(5) The Committee shall make an annual report on the discharge of their functions to the Prime Minister and may at any time report to him on any matter relating to the discharge of those functions.
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(6) The Prime Minister shall lay before each House of Parliament a copy of each report made by the Committee under subsection (5) together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
(7) If it appears to the Prime Minister that it is evident that the publication of any matter was exempt under the Code of Practice to Government Information, the Prime Minister may exclude the matter from the copy of the report as laid before each House of Parliament."
The noble Lord said: My Lords, this is the amendment that I should like the Government to accept at Third Reading. It may be termed an enabling amendment. The distinction between it and Amendment No. 30 is to be found in subsection (4), where the reference to Schedule 2 in Amendment No. 30 has been deleted and replaced by a power to introduce secondary legislation by order.
The amendment would enable the Government to establish a committee and leave the detail on tenure of office by committee members, committee procedures, access to information, definitions of sensitive information, staging of notification of licence applications, measures for the avoidance of delay and conflict of interest rules to secondary legislation, following up detailed consultation with lobbies and with the defence industry. Again, I do not expect to receive a substantive response today; I leave that for Third Reading. As this is an enabling amendment. however, I hope that the Government themselves will table an amendment that will bring my Amendment No. 31 into proper order.
Lord Sainsbury of Turville: I am most grateful to the noble Lord for this proposal. However, as I said, the Government are still considering, and are concerned about, matters of principle as well as matters of detail. I outlined in earlier discussion some of those areas of concern.
As the noble Lord said, this amendment would be an enabling power. However, as he will appreciate, agreement to the amendment at this stage would commit the Government to taking action. As he knows, the Government take such matters and their commitments very seriously. It would be very difficult to argue that agreement to an amendment such as Amendment No. 31 was not an effective commitment to introduce such a committee. Moreover, even were we not of that view, as the noble Lord may be aware there are persons in Parliament who would most definitely be of that view. Indeed, there are noble Lords and Members in another place who regularly ask the Government for information on what parts of Acts have not yet been brought into force and view the answer that there are areas where the Government have been "tardy" with great disapproval.
Therefore, while I appreciate the spirit in which the noble Lord proposed an amendment stating that the,
"Prime Minister may by order make provisions as to the tenure of office, members of, the procedure of and other matters relating to, the Committee",
I am afraid that I cannot agree to make the commitment to introducing the committee that acceptance of this amendment would entail.

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I stress, however, as I have indicated before, that we feel it essential to get to the bottom of the important issues of principle which I have already mentioned and address points of detail. That will take a little time. Given the vital issues it covers, we would be very reluctant to see the Bill and its implementation delayed still further. However, we are clear that the Government, were we to decide to adopt this approach, would be able to set up a defence exports scrutiny committee, in all its essentials, without a requirement for new legislation.
Finally, I again say to the noble Lord that the Government intend to continue their examination of his proposals and their consideration of how best to achieve greater accountability and transparency in the export licensing process. I also hope to meet him soon to discuss his proposals further. For all those reasons, which are very similar to the previous ones, I hope that he will agree to withdraw his amendment.
Lord Campbell-Savours: On the basis of my noble friend's comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Orders]:
Lord Sainsbury of Turvillemoved Amendment No. 32:
Page 7, line 23, leave out from "order" to "shall" in line 24 and insert "made by virtue of section (Exceptions from the general restriction) (1)"
On Question, amendment agreed to.
Baroness Miller of Hendonmoved Amendment No. 33:
Page 7, line 24, after "section" insert "I, 2, 3, 4 or"
The noble Baroness said: In moving Amendment No. 33, I shall speak also to Amendment No. 34. I can do so briefly as they are to the same effect.
The amendments would require orders made under this legislation to be approved by Parliament by the positive resolution procedure and not by the negative procedure. I need not take up much time by explaining the difference in detail as this argument has been rehearsed before your Lordships on many occasions. I think it is relevant, however, for me to remind noble Lords that secondary legislation receives far less scrutiny than primary legislation. The latter at least has to go through three stages in each House, although in the other place it is possible for entire clauses or parts of Bills not to receive any consideration whatever, and when they do it is a matter for the Speaker or the Standing Committee chairman to decide which amendments will or will not be called. That is why your Lordships' House is justly called the finest revising Chamber in the world. Every Bill can be scrutinised line by line, every amendment can be debated and every noble Lord who wishes to speak is heard.
Negative resolutions receive scant attention in both Houses. They rarely get on to the Floor of the other place, and it does require some effort to get them on to the Floor here as well. Positive resolutions do
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theoretically receive the attention of your Lordships' House—although the Chief Whip is shaking his head. I am sure that he will agree that positive resolutions certainly receive more scrutiny than negative ones. Now he is nodding; this is a very visual amendment. With the nodding I missed out an important paragraph.
I confess that I sometimes find myself talking to the Minister and our respective Whips in an empty Chamber during the dinner hour. But at least if there is something to be said, it will come to the attention of those noble Lords who are interested in the subject as they can read it in Hansard.
The Act that this Bill is replacing was passed in 1939—63 years ago. It was not an enabling Act with whole tracts of it left to ministerial decree. However, this is a Bill which imposes heavy burdens on exporters and severe penalties for those who breach either its provisions or, more relevantly for the purpose of these amendments, the provisions decreed by the Secretary of State. It is only right that they should receive the higher degree of scrutiny that Parliament is able to give to secondary legislation.
I cannot understand in the least why the Government do not want that to happen and do not want positive vetting of ministerial orders. The negative resolution procedure was originally intended, and in my submission should still be used only, for orders that are inherently non-controversial. The Minister told your Lordships when opposing these amendments previously that—I feel that I must quote him—
"Such orders will frequently be of a technical nature. That is perfectly understandable to Members of this Chamber, but they may not want to spend a great deal of time talking about them ". — [Official Report, 4/3/02; col. 92.]
I am sure that the Minister did not intend to be as condescending as that sounds, but that is how it appeared. I made the point that if noble Lords were not interested in a particular subject they would not become involved in it. However, many noble Lords wish to scrutinise Bills. They understand them and they think it only right that they should scrutinise them.
It is a negation of the democratic process that the onus of bringing a matter to the attention of either House should rest on either the Opposition or an individual Member rather than on the Minister proposing the order. This Bill is in principle relatively uncontroversial apart from some provisions which will have been settled by the time we reach this clause, as they have been.
The Government have nothing to fear from putting their secondary legislation before Parliament on the basis of positive resolutions. I urge the Minister to put aside what seems to be an instinctive dislike of that procedure and to accept these amendments willingly and happily. I beg to move.
10.15 p.m.
Lord Sainsbury of Turville: My Lords, I am sure that my tone was in no way condescending. I believe that it showed rather a touching faith that wise Members of this House would not want to spend their valuable time discussing detailed technical questions.
Noble Lords: Oh!
Lord Sainsbury of Turville: That may be rather a touching faith. Perhaps I shall not make such a foolish mistake again. However, my tone was in no way condescending.
The effect of these two amendments would be to subject control orders made under Clauses 1, 2, 3 and 4 of the Bill to parliamentary scrutiny by the affirmative, rather than the negative, resolution procedure. I should like to explain why the Government continue to believe that the negative resolution procedure is the more appropriate method for scrutinising orders made under these sections of the Bill.
As I explained in Committee, the Bill provides for different scrutiny provisions for different kinds of orders which reflect the distinction between orders that can change the reasons for which export controls can be imposed and orders that set out the details of those controls. The Bill properly provides for the affirmative resolution procedure to apply to orders that modify the schedule or which operate for a limited time for reasons outwith the schedule.
We believe, however, that scrutiny of orders which simply set out the details of controls is best achieved by means of the negative resolution procedure. As well as being of a frequently technical nature, I emphasise that such orders will be both restricted in their scope by the schedule, which cannot be changed without Parliament's express approval, and restricted in their application by the terms of the guidance issued and laid before Parliament under Clause 7. The Government believe that these restrictions, coupled with the negative resolution procedure, provide the necessary democratic accountability with regard to the making and use of such orders.
The Government recognise, however, that Parliament quite properly has an interest in the controls that are to be introduced by order under Clauses 1 to 4. That is why we published dummy draft orders in October that set out the details of the new controls, to allow Parliament to see how the Government are proposing to use the powers in the Bill. Additionally, as I made clear in Committee, the Government have announced that they will be holding a full public consultation on draft secondary legislation before the new controls are introduced. That will provide a further opportunity for all those with an interest to consider and comment on the new controls that are to be introduced.
In view of that, I invite the noble Baroness to withdraw the amendment.
Baroness Miller of Hendon: My Lords, I am of course disappointed. I always think that it is important to have affirmative resolutions for such matters. However, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord Sainsbury of Turvillemoved Amendment No. 35:
Page 7, line 35, leave out from "which" to ": or" in line 36 and insert "is not made by virtue of section (Exceptions from the general restriction) (1)"
On Question, amendment agreed to.
Schedule [Purposes for making control orders]:
Lord Sainsbury of Turvillemoved Amendment No. 36:
Page 9, line 7. leave out "equipment" and insert "goods"
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 37 to 40. These are all minor amendments whose purpose is to ensure that paragraph 1 of the schedule is as comprehensive as possible. Noble Lords will remember that paragraph 1 was introduced by government amendment in Committee in order to put beyond any doubt the Government's ability to impose controls on all the firearms and other military equipment or technology that we currently control. That amendment responded to a concern that was raised by the noble and learned Lord, Lord Scott, on this issue at Second Reading.
In these minor amendments, we are essentially dotting our "i"s, and crossing our "t"s, as it were, in order to ensure that paragraph 1 covers all military equipment and technology and all the equipment and technology that is designed to produce military equipment and technology.
Amendment No. 36 replaces the term "equipment", which is used in paragraph 1(1)(c) but which is not used elsewhere in the Bill on its own, with the more appropriate term "goods", which is used throughout the Bill. Amendment No. 37 ensures that controls could be imposed on equipment that is intended, designed or adapted for use in the development of military technology, as well as military equipment. Amendment No. 38 brings sub-paragraph (2) into line with sub-paragraph (1) by providing that transfer controls may be imposed in relation to technology for use in the development or production of military technology. Amendment No. 39 ensures that technical assistance controls may be imposed in relation to any of the goods and technology that are described in paragraphs 1(1) and 1(2). Amendment No. 40, by inserting the text in parentheses, brings the definition of "military technology" in sub-paragraph (4) into line with the definition that is already contained in that sub-paragraph of "military equipment": by an oversight, the definitions that are currently in paragraph 1(4) are not completely aligned.
To sum up, these are all minor changes, which rationalise the definitions used in paragraph 1 of the schedule and ensure that paragraph 1 covers all equipment and technology that is designed for the development and production of military equipment and technology, as well as military equipment and technology as such. I therefore invite the House to support the amendments.

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On Question, amendment agreed to.
Lord Sainsbury of Turvillemoved Amendments Nos. 37 to 40:
Page 9, line 8, at end insert "or military technology"
Page 9, line 9, at end insert "or
(b) technology intended, designed or adapted for use in the development or production of military technology."
Page 9, leave out lines 12 to 14 and insert—

"(a) any goods falling within sub-paragraph (1)(a), (b) or(c); or

(b) any technology falling within sub-paragraph (2)(a) or (b)."

Page 9, line 21, leave out from "includes" to "for" in line 24 and insert—

"(a) technology intended, designed or adapted for military use (whether or not in military use); and

(b) technology intended, designed or adapted"]

On Question, amendments agreed to.
Lord Campbell-Savoursmoved Amendment No. 41:
After Schedule, insert the following new schedule—
"SCHEDULE 2
DEFENCE EXPORTS SCRUTINY COMMITTEE
Tenure of Office
1 (1) Subject to the provisions of this paragraph, a member of the Committee shall hold office for the duration of the Parliament in which he is appointed.
(2) A member of the Committee shall vacate office—

(a) if he ceases to be a member of the House of Commons;

(b) if he ceases to he a member of the House of Lords;

(c) if he becomes a Minister of the Crown; or

(d) if he is required to do so by the Prime Minister on the appointment, in accordance with section (Defence Exports Scrutiny Committee) of this Act of another person as a member in this place.

(3) A member of the Committee can resign at any time by notice to the Prime Minister.
(4) Past service is no bar to appointment as a member of the Committee.
Procedure
2 (1) Subject to the following provisions of this Schedule, the Committee may determine their own procedure.
(2) If on any matter there is an equality of voting among the members of' the Committee, the chairman shall have a second or casting vote.
(3) The chairman may appoint one of the members of the Committee to act, in his absence, as chairman at any meeting of the Committee, but sub-paragraph (2) above shall not apply to a chairman appointed under this sub-paragraph.
(4) The quorum of the Committee shall be three.
(5) Procedures shall be agreed between the Committee and the Prime Minister for the discharge of functions of the Committee when either House was in recess.
Access to Information
3 (1) If a Secretary of State is asked by the Committee to disclose any information, then, as to the whole or any part of the information which is sought, he shall either—

(a) arrange for it to be made available to the Committee; or

(b) inforrn the Committee that it cannot be disclosed because it is sensitive information (as defined in paragraph 4 below) which, in his opinion, should not be made available under paragraph (a) above.

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(2) The Secretary of State shall not make a determination under sub-paragraph (1)(6) above with respect to any information on the grounds of national security alone and, subject to that, he shall not make such a determination unless the information appears to him to be of such a nature that, if he were requested to produce it before a Select Committee of either House of Parliament, he would think it proper not to do so.
Sensitive information
4 The following information is sensitive information for the purposes of paragraph 3 above—

(a) information that would directly threaten national security subject to paragraph 2 above;

(b) information that involves operational considerations in crises or conflicts;

(c) information provided by, or an agency of, the Government of a territory outside the United Kingdom where that Government does not consent to the disclosure of the information;

(d) information prejudicial to the operations of a government department.

Stage I notification of licence applications
5 (1) Subject to paragraph 3(1), the Secretary of State shall notify the Committee of a licence application prior to determining that application under section 1, 2, 3 or 4 of the Export Control Act 2002.
(2) For the purpose of paragraph 5(1), the Secretary of State will not be required to notify before a determination of an export licence if—

(a) the licence application is for export to a NATO state and other close allies, on the basis of a list of criteria to he agreed between the Committee and the Secretary of State,

(b) the licence application is not for any equipment specified in Part I of Schedule Ito the Export of Goods. Transfer of Technology and Provision of Technical Assistance (Control) Order, and

(c) the licence application is not circulated to other departments.

Stage 2 notification of licence applications
6 (1) The Committee may request the Secretary of State provide supplementary information regarding a licence circulated to the Committee under paragraph 5(1) within a period of ten working days from the receipt of the information.
(2) Information circulated to the committee under this section shall be considered classified.
(3) It will be an offence to disclose or authorise the disclosure of information received under sections 5 and 6 unless disclosure is authorised by the Secretary of State.
Delay
7 (1) On receipt of information provided by the Secretary of State under paragraph 6(1), the Committee shall advise the Secretary of State of its opinion within ten working days unless an extension is granted by the Secretary of State.
(2) The Secretary of State will not be restricted by paragraph 6(1) if in his opinion a contract may otherwise be lost.
Conflict of interest
8 A member of the Committee shall so organise his private affairs so that they do not conflict with his public duty."
The noble Lord said: My Lords, the amendment provides the new schedule to which I referred in our debate on Amendment No. 30. The amendment has been tabled to indicate to those outside the House who have been following the development of the prior scrutiny debate the nature of the further work that is being carried out in the detail of the proposal.
The new schedule would enshrine in primary legislation matters relating to: the tenure of office of committee members; the procedure of the DESC; the issue of access to information by the DESC; definitions of sensitive information; stage one and stage two arrangements for the notification of licence applications; measures for the avoidance of delay in the treatment of applications; and conflict of interest issues.
The amendment might be of assistance to the Government at a later stage, in particular with regard to the work that we have carried out in that area. In completing my contributions to this evening's debate, perhaps I may say to my noble friend that I detect a slight shifting of the ground in his responses. I do not mean that in any critical way, but in the sense that we have set out to respond to each of the very important and detailed objections that Ministers have made to the whole principle of prior scrutiny. I note that some new thoughts have been given to this matter and some new objections have been raised. I can assure my noble friend that we shall set out to respond to those over the coming days.
My noble friend referred to the question of transparency under the present quadripartite arrangements. But, of course, he will know that the Quadripartite Committee's objections are essentially
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that the post-scrutiny arrangements and not the prior scrutiny arrangements are being looked at. That brings us to the core of the committee's objection.
He also referred to the whole question of later legislation, although I believe that I heard him say that a route may be available which does not necessarily go by way of legislation. The problem with later legislation is that which arises in relation to the hedges Bill: there is never a slot. We must take whatever opportunities we can find. This is a golden opportunity to bring about the changes in the law which so many people in the United Kingdom want. I beg to move.
Lord Sainsbury of Turville: My Lords, I do not believe that I can add to the comments that I made in relation to Amendment No. 30.
Lord Campbell-Savours: My Lords, I accept that response. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Land at Palace Avenue, Kensington (Acquisition of Freehold) Bill
Brought from the Commons, read a first time and referred to the Examiners.
House adjourned at twenty-seven minutes past ten o'clock