Export Control Bill

HL Deb 18 April 2002 vol 633 cc1163-98

8.50 p.m.

Consideration of amendments on Report resumed.

Clause 5 [General restriction on purposes of control orders]:

Lord Sainsbury of Turville

moved 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.

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 Hendon

moved, 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 Turville

moved 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—

1. (a) amend an earlier control order: or
2. (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 Hendon

moved Amendment No. 19: Page 5, line 19 at end insert ", but such disclosure shall not be permitted except—

1. (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
2. (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 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 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 Hendon

moved 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". 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.

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 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 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 Hendon

moved 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—

1. (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;
2. (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;
3. (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;
4. (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.
5. (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
6. (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.

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 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.

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 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 Turville

moved 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—

1. (a) the making of information generally available to the public; or
2. (b) the communication of information that has already been made generally available to the public."

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.

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 Hendon

moved 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 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 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 Redesdale

moved Amendment No. 24: Page 5, leave out lines 44 and 45 and insert— Where—

1. (a) the description of thing being controlled is within one or more of the categories mentioned in the Schedule; or
2. (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— 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 Redesdale

moved 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.

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 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 Redesdale

moved Amendment No. 26: Page 6, line 10, leave out subsection (6) and insert ( )— Changes made to guidance

1. (a) required by subsection (3) which includes guidance about the consideration to be given to—
1. (i) issues relating to sustainable development; or
2. (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
2. (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 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-Savours

moved 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—

1. (a) drawn both from the members of the House of Commons and from the members of the House of Lords; and
2. (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 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 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 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.

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-Savours

moved 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—

1. (a) drawn both from the members of the House of Commons and from the members of the House of Lords; and
2. (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. (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.

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 Turville

moved 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 Hendon

moved 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 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.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord Sainsbury of Turville

moved 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 Turville

moved 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.

On Question, amendment agreed to.

Lord Sainsbury of Turville

moved 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—

1. "(a) any goods falling within sub-paragraph (1)(a), (b) or(c); or
2. (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—

1. "(a) technology intended, designed or adapted for military use (whether or not in military use); and
2. (b) technology intended, designed or adapted"]

On Question, amendments agreed to.

Lord Campbell-Savours

moved 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—

1. (a) if he ceases to be a member of the House of Commons;
2. (b) if he ceases to he a member of the House of Lords;
3. (c) if he becomes a Minister of the Crown; or
4. (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—

1. (a) arrange for it to be made available to the Committee; or
2. (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.

(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—

1. (a) information that would directly threaten national security subject to paragraph 2 above;
2. (b) information that involves operational considerations in crises or conflicts;
3. (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;
4. (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—

1. (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,
2. (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
3. (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 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.