§ 3 Clause 2, page 1, line 19, at beginning insert "Subject to the provisions of section (Academic Freedom),"
The Commons disagreed to this amendment for the following reason—
3A Because Lords Amendment No. 16 makes more appropriate provision.
§ Lord Sainsbury of Turville
My Lords, I beg to move that the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason 207 numbered 3A. In moving this Motion, I shall speak also to the amendments and reasons numbered 4, 4A, 6, 6A, 10, 10A, 10B, 10C, 13 and 13A, which all deal with the issue of academic freedom.
In the course of debate in this House and elsewhere on the impact of the Bill on academic freedom, it has become clear that government, opposition parties and the representative bodies of the universities essentially share the same objectives. Those are to find a way of providing protections that would prevent a government in future using the powers in the Bill to damage academic freedoms while, at the same time, ensuring that the Bill provides the Government with the powers that they need for an effective and up-to-date export control regime.
The debate has been about how best to achieve a proper balance between those two objectives. As the noble Earl, Lord Russell, expressed it in debate on Report,the most interesting and difficult parliamentary conflicts are those which are between right and right".—[Official Report, 18/4/02; col. 1118.]The Government and others have been concerned that amendments introduced by the Opposition created, if unintentionally, damaging loopholes in the Bill. But others have been concerned that the new clause introduced by the Government on Report did not go far enough in protecting academic freedoms.
Against that background, I am pleased to say that Amendments Nos. 10B and 10C proposed in lieu of Amendment No. 10 have been prepared in discussion with the noble Baronesses, Lady Miller and Lady Warwick, and the noble Lord, Lord Roper. I am grateful for the constructive approach that all have taken in trying to achieve our shared goal. In particular, I acknowledge the pivotal role of the noble Baroness, Lady Miller, in obtaining agreement on our text with which both Opposition parties, Universities UK and the Government are content.
The House will recall that on Report both the Government and the noble Baroness, Lady Miller, proposed new clauses that sought to provide reassurance that the Bill could not be used by a future government in a way that damaged important academic freedoms. The House accepted both clauses. The new clause that I have tabled will take the place of both those clauses. Technically, it replaces the Government's clause but it is offered in lieu of the clause introduced by the amendment of the noble Baroness, Lady Miller, as well.
Following the extensive debates that we had in this House both on Report and at Third Reading, we reflected further on the issues raised and concluded that there were two legitimate concerns about the Government's clause which we should seek to address. The first was that, in obliging the Secretary of State simply to have regard to the need to avoid certain unreasonable restrictions, the clause did not place a particularly strong obligation upon the Secretary of State.
208 The second was that concerns remained about whether the clause would apply to the communication of research or communications in the course of research prior to the research being published. The new clause that we have tabled deals with both those issues.
First, it introduces in subsection 1(a) a reference to a new activity to be protected by the clause, namely,the communication of information in the ordinary course of scientific research".This is in addition to the activities of publishing information or communicating published information. I believe that that addresses the concerns raised by the noble Baroness, Lady Sharp, at Third Reading about communications between academics and their research students and by the noble Lord, Lord Avebury, about the fact that an academic carrying out research that will lead to publication will not, while the research continues, want others to discover what he is doing and will, therefore, keep that research private.
The second way in which this clause goes further than that agreed on Report is that it places a stronger duty on the Secretary of State in terms of the requirements upon him or her to ensure that these freedoms are protected when drawing up control orders. It therefore also increases the ability of the court to strike down unacceptable provisions in a control order. The noble Baroness, Lady Miller, expressed the view on Report that the clause we had introduced on Report—Clause 9—created,only the lowest kind of whisper of a restriction".—[Official Report, 20/5/02; col. 532.]The Government would certainly argue that it did more than that, but we did accept that there was scope to strengthen the requirements placed by the clause on the Secretary of State. I believe that it would be helpful for the House, and for future reference, if I explain in some detail, what the legal effect of the revised clause would be.
The clause would state that it is for the Secretary of State to determine that any interference in any of the freedoms described in the clause is necessary in the light of the circumstances prevailing at the time and having considered the reasons for seeking to control the activity in question and the need to respect the freedom to carry on the affected activity. This formulation makes explicit that the Secretary of State must form his or her view of the need for the interference in the light of all the relevant facts and other surrounding circumstances. These will include international obligations and commitments undertaken by the United Kingdom. It also makes explicit the balancing exercise that must be carried out by reference to those circumstances and to the needs both to control the activity and to respect the freedom to carry on that activity. This means that the Secretary of State will have to identify the ways in which particular proposed controls are likely to impinge on the freedom to communicate in the ways that are specified in subsection (1), and the reasons for that interference. He or she will then have to decide whether that control is "necessary".
209 These procedures will require the Secretary of State to consider the proportionality of the proposed controls, in order to be able to conclude that the degree of interference is no more than is necessary to meet the identified reasons.
This means that the Secretary of State could be challenged in the courts on one or more of the following bases: whether he or she had taken account of all the relevant facts and other circumstances and not considered irrelevant material; whether he or she had taken the proper steps to identify all the apparent interferences and the reasons for them; whether he or she had considered whether the degree of interference was justified by the reason for imposing the interference in the first place; and whether he or she had considered and balanced these reasons and the degree of control against the need to respect the freedom to carry out the identified activity.
The clause would enable the court to assess whether, in respect of any particular control, the Secretary of State had acted within the terms of the power and had reached a conclusion that was within the range of conclusions that it would be open to a person in those circumstances to reach while acting not unreasonably. The courts would thus be able to restrain arbitrary or unreasonable use of the power, or use of the power for collateral purposes.
I am confident, therefore, that this new clause provides real protection against the possibility of the powers in the Bill being abused in the future. At the same time it does so without creating loopholes that could be exploited by the unscrupulous. I am grateful for the assistance of the noble Baroness, Lady Miller, the noble Lord, Lord Roper, and the noble Baroness, Lady Warwick, in drawing up this clause. I shall, therefore, be inviting the House to support Amendments Nos. 10B and 10C. I understand, too, that, in light of the agreement we have reached, the noble Baroness does not consider it necessary to insist on the other amendments to the Bill introduced on Report by her amendments and for that reason I shall be inviting the House not to insist on its Amendments Nos. 3, 4, 6 and 10 to which the Commons have disagreed, and shall move that the House agree with the Commons in their Amendment No. 13A to Lords Amendment No 13.
§ Moved, That the House do not insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.—(Lord Sainsbury of Turville.)
§ 4.15 p.m.
§ Baroness Miller of Hendon
My Lords, I thank the Minister for three things. First, I thank him for having introduced this amendment in lieu of the Commons rejection of this House's Amendment No. 10 and for the explanation he has given us. Secondly, but even more importantly, I thank him for the fact that at last, after debate in your Lordships' House and difficult negotiations between the noble Lord and myself behind the scenes, he has persuaded the Government to recognise the genuine concerns of the academic 210 world and to agree to this considerable modification of their proposals which, in their original form, would have severely impinged on academic freedom.
Lastly, I am grateful to the Minister for having implemented his promise to provide me with an advance copy of the statement he has made about the legal implications of the new clause.
On Report, I introduced an amendment designed to protect and preserve academic freedom. At that time it was strongly opposed by the Government but was passed by a substantial majority: 150 votes to 108. That was because of the unswerving support of the Liberal Democrat Peers, led by the noble Baroness, Lady Sharp of Guildford, for which I am extremely grateful, and the work of many Cross-Bench Peers.
Despite that overwhelming indication of cross-party support, the Government's huge majority in another place was used to steamroller the carefully drafted amendment out of existence. Today we are discussing an amendment in lieu of the Commons amendment. I am sure the Minister will agree with me that the amendment did not have an easy birth. The first draft presented by the Government contained a provision that academic freedom would not be interfered with unless,The Secretary of State…is satisfied that it is necessary to do so".Obviously that was unacceptable. At 9.30 last Wednesday evening the Minister personally handed me the draft of a revised amendment which off the cuff I believed would have been acceptable. However, by late the next morning I heard that there was a new draft. I do not intend to trouble noble Lords with a blow-by-blow account of what then ensued but during the next six hours in the course of hectic negotiations, a flurry of telephone calls, faxes and e-mails no fewer than four more drafts were submitted by the department. They were rejected by me because they contained one essential flaw. They left the degree of regulation to the subjective judgment, the mere opinion, of the Secretary of State rather than the objective judgment that the Minister and I agreed would be the criterion. What the Secretary of State thinks is not objective. If the Secretary of State thinks that the earth is flat, it would not make the earth flat.
The final draft of the amendment now makes clear that the criterion for any regulation is an objective judgment. It has been approved by me, therefore, on behalf of the Conservative Opposition. The noble Baroness, Lady Sharp of Guildford, may state, I believe with some pleasure, that noble Lords on those Benches accept the amendment.
The noble Lord, Lord May—he is at present on holiday—has been supportive of the arguments I have put forward to secure the amendment which is before the House today. In its present form, the amendment is accepted by Universities UK, the noble Baroness, Lady Warwick of Undercliffe, and the Association of University Teachers. The noble Baroness has worked hard on the issue behind the scenes.
As I agreed from the outset with the Minister, my acceptance of a compromise was conditional on his making it clear on the record that the objective 211 decisions of the Secretary of State to impose a control order under the new clause are subject to judicial review on the merits. That he has done.
Finally, apart from the support that I have received from noble Lords which I have already acknowledged, I should like to place on record my appreciation of the exceptional advice, assistance, encouragement and support that I have received from the noble Lord, Lord May, the distinguished president of the Royal Society, the noble Baroness, Lady Warwick of Undercliffe, Universities UK which represents university vice-chancellors, the Association of University Teachers, the Foundation for Information Policy Research, Dr Ross Anderson of Cambridge University, who is a specialist in electronic encryption, a solicitor, Mr Nicholas Bohm, a member of the Electronic Law Committee of the Law Society—those two gentlemen are involved with the Foundation for Information Policy Research—and another solicitor who insists on anonymity.
As I have just said, I am glad that in the end the Government and their advisers saw reason and accepted that the protection of academic freedom is essential if the United Kingdom is to remain a leading world-class centre for academic teaching and research. On that basis, we are pleased to support the Government's Motion for this amendment in lieu.
§ Baroness Sharp of Guildford
My Lords, I rise from these Benches to welcome the new amendment. This has been a long haul. Many people have been involved in lengthy negotiations. I am delighted, as the Minister mentioned, that we have recognition in the amendment that academic research involves more than just research for publication. A great deal of research does not see the light of day. If the research is a scientific process that is so because one tests ideas. Sometimes they test right and sometimes they test wrong. One cannot do anything about that.
I very much welcome the fact that the amendment writes on the face of the Bill the need to consider the proportionality of any proposed control and the requirement that the Secretary of State should make explicit—when he considers it necessary to impose any such control—his reasons for doing so. Finally, I welcome the fact that his decision can be subject to judicial review and may be challenged in the courts. All these are excellent moves. I am delighted to see them in the amendment.
I pay tribute to those who have spent so much time working on this matter. I refer, in particular, to the noble Baroness, Lady Miller, the noble Baroness, Lady Warwick, from Universities UK, and my Chief Whip, my noble friend Lord Roper. While I was busy with the Education Bill he carried on negotiations on the Bill for me. I thank also the many people who, as the noble Baroness has mentioned, have worked behind the scenes on the amendment. I refer to people such as Ross Anderson, Nicholas Bohm, Chris Felton at Universities UK and, last but not least—I suspect that this was the gentlemen who wished not to be named, but I think it is worth naming him—the noble 212 Baroness's husband. I know that he has had a great deal—he is present in the House—to do with the matter. I thank him warmly. So on behalf of these Benches, I just say that, yes, we welcome this new amendment and we shall be supporting it.
§ Baroness Warwick of Undercliffe
My Lords, in speaking to the amendment I register an interest as chief executive of Universities UK. I am grateful to my noble friend Lord Sainsbury for tabling the amendment which, as all noble Lords have said, comes after huge efforts right across the Chamber. I am enormously grateful for all the work done by the noble Baroness, Lady Miller of Hendon, in order to bring forward the amendment. It is all the more admirable because she had health problems during the period. I am delighted to say that she has now recovered to her feisty self, as she has just demonstrated.
The work of the noble Baroness, along with the efforts of the noble Lord, Lord Roper, the noble Baroness, Lady Sharp, the noble Lords, Lord May and Lord Oxburgh, and many others, has been vital in achieving what this House does best, which is reaching a workable solution. The amendment resolves what at first seemed an unbridgeable gap between the voices heard in this Chamber.
I am glad to say that the amendment does what I hoped for when I spoke on this issue in Committee. It provides a real level of protection for the academic community, for the teaching and research work carried out in our universities. Universities UK has been working on this subject since 1998. Universities UK's president, Professor Roderick Floud, argued for it when he appeared in front of the quadripartite committee in another place over a year ago. It is a matter on which we and our colleagues in the Association of University Teachers have been united.
Equally important, it does not do anything to weaken the export control regime which the Government seek to put in place. We at Universities UK listened to what my noble friend said in that respect. I am happy that our respective objectives have been met. The progress made since this House last considered these amendments is significant. I was very much of the view then that what my noble friend offered did not go anywhere near the guarantee for the academic community. As many of us said, the level of protection seemed to be unacceptably low. My noble friend disagreed. But by the same token, I know that my noble friend had considerable concerns about the amendment that we supported and which the noble Baronesses, Lady Miller and Lady Sharp, tabled on Report.
Since then, I have had several fruitful meetings with my noble friend. We, together with others, particularly the noble Baroness, Lady Miller, now have an amendment which includes, most importantly for us, an objective test of whether any proposed controls are necessary, rather than one which depends on the Secretary of State satisfying him or herself that that is the case. That is the crucial concession, although one won with a few grey hairs—certainly at Universities UK—as negotiations reached fever pitch last week.
213 I therefore have no problem in lending my support to the amendment. I look forward to contributing to the consultation on the secondary legislation which will expand on this provision in the coming months.
§ Lord Moser
My Lords, it goes without saying that I was not privy to the behind the scenes discussions that have been taking place. Can the Minister clarify the last two lines of subsection (1) of the proposed new clause 10B? Can he explain what circumstances could possibly justify the Secretary of State prohibiting the communication of information that is generally available to the public; in other words, information that is already in the public domain?
§ Lord Sainsbury of Turville
My Lords, I add my thanks to the husband of the noble Baroness, Lady Miller. I believe that he has always had an ambition to be a parliamentary draftsman. On this occasion I hope that he feels he came as near to that as is possible without actually having the title.
The noble Lord, Lord Moser, asked in what circumstances the Secretary of State could ever consider interfering where the communication of information is generally available to the public? It is difficult to envisage what those circumstances might be. But there might be circumstances where the information was generally known but could not be got hold of by a particular country or a particular company which might make use of it to ill effect on other people.
It is difficult to envisage these circumstances. But, as we have just seen in the previous debate, situations occur where unexpected actions are required by the Secretary of State. One does not want to have a situation where primary legislation has to be introduced to deal with that.
The House has done much to improve the Bill. We have, in response to concerns raised by the noble and learned Lord, Lord Scott, and others, made much clearer the respective roles of the schedule and guidance to be issued under the Bill. We put our continuing commitment to the issue of sustainable development beyond doubt by amending the Bill and putting a reference to sustainability on the face of the Bill.
Finally, I invite the House today to agree a new clause which will protect against the risk that the powers in the Bill might be used in future to undermine academic freedoms.
I believe that valuable changes have been made in this House. Inevitably the Bill does not meet everyone's aspirations in full. But I think that all sides of the House will agree that this is a worthwhile Bill which provides a sound basis for a modern and effective export control regime. The noble and learned Lord, Lord Scott of Foscote, said at Second Reading that for the first time in some 50 years we will have constitutional and democratic respectability. He said that the Bill was thoroughly to be welcomed. I hope that, with the amendments which have been made, the House feels the same and will agree with him. I invite 214 the House not to insist on their Amendment No. 3 to which the Commons have disagreed for their reason numbered 3A.
§ On Question, Motion agreed to.