§ Read a third time.
§ Clause 4 [Academic freedom]:
§ Baroness Miller of Hendon
moved Amendment No. 1:Page 3, line 46, at end insert "or(ii) that such information is military technologyThe noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 3. The amendments all relate to new Clause 4 inserted in the Bill on Report by your Lordships following an amendment proposed by me and my noble friend Lord Rotherwick, and by the noble Baroness, Lady Sharp of Guildford.
The purposes of these further three amendments is simply to respond to objections made by the Minister either during debate or subsequently. It is not that I agree with those objections or comments; I was perfectly happy with the clause as passed on Report. However, I want to try to accommodate the Minister and his worries and to dissuade him from having his colleagues in the other place overturn your Lordships' decision. I remind the Minister and, indeed, the House that the clause was passed by an overwhelming majority in this House of 150 to 108; that is, a majority of one-third. That majority comprised noble Lords on all three party Benches as well as distinguished Cross-Benchers, and therefore cannot be dismissed as a party political act.
The Government often pay lip service to your Lordships' House as the finest revising Chamber in the world. Just as we pay due respect to the wishes of the elected House, I believe that the Government should pay due attention to what in this case is the carefully considered and authoritative opinion of so many highly qualified Members of this Chamber with no political axe to grind; merely the wish to preserve academic freedom and maintain the status of the United Kingdom as an international centre of academic excellence.
In my closing remarks before testing the opinion of the House on Report, I said in response to some of the observations of the Minister:my amendment may not be perfect but it could certainly be put right at Third Reading. That would be the appropriate thing to do".—[Official Report, 18/4/02; col. 1126.]520 In order to see how I could accommodate any genuine technical problems that the Government might have over the clear wishes of this House. I offered to meet the Minister to discuss them with him. I received an offer of an appointment from the Minister's office which, to my amazement, as I told the Minister when I later saw him, was cancelled within a matter of a few minutes. The second telephone call I received from the Minister's department simply stated: "Forget the previous message, the Minister is unable to see you". I thought that meant that the Minister did not wish to talk to me. I am sure that that could not be true, but I did at that stage following such a brusque push off. Therefore, I tabled my amendments to meet my understanding of the Minister's problems—ill founded as they were, as I said. It was only then that the Minister agreed to meet me as late as last Wednesday, 15th May, exactly four weeks after the Report stage of the Bill.
He then wrote to the noble Baroness, Lady Warwick, of Universities UK. That organization, I remind your Lordships, represents university vice-chancellors. The copy of the letter which he faxed to me arrived incomplete with several important pages somehow missing. I did not see what he said to her until last Friday afternoon. I cannot tell your Lordships the exact time because—the Minister may like to know—his fax machine thought the time was 32 minutes past midnight on 27th June 1996. Perhaps that is an undiscovered example of the dreaded Y2K virus, and it lurks in his office.
I shall return to that fax shortly. First, however, I should like to explain each of my amendments, which are all quite simple and which, I hope, improve the clause to the Government's satisfaction. Clause 4(1) sets out the matters on which the Government may not impose transfer of controls or technical assistance controls; in other words, what academic teaching and publication may not be prohibited. Clause 4(1)(c) limits publication and teaching where the teachers know or ought to know that the information is intended or may be used for a number of highly objectionable purposes. These include such matters as the development, operation, and so on, of nuclear, chemical and biological weapons. I shall not read out the 10 lines of the paragraph, but I remind your Lordships that the words used exactly follow Article 4 of the EC dual-use regulation.
Amendment No. 1 seeks to add the words "military technology" to that lengthy catalogue. I propose those words because of the Minister's astonishing intervention after he had lost the first technical Division on a paving amendment. In the discussion on the main amendment he stated:I was talking about blueprints on cluster bombs and other activities. That is exactly what the Export Control Bill will control … We have just made a large hole in the Bill by saying that if someone is an academic, he can export blueprint instructions on how to make cluster bombs, electric shock batons … and any military equipment".—[Official Report, 18/4/02; col. 1135.]With every respect to the Minister, I find it difficult to answer such a fanciful interpretation of the new clause without using the word "nonsense". I hope that the 521 Minister does not mind that word. I content myself by pointing out to the noble Lord and to your Lordships that the whole of the clause is governed by the phrase,in the ordinary course of academic teaching or research".It would he a particularly foolhardy barrister who tried to persuade even the most gullible magistrate or jury that the manufacture of weapons is—I repeat—in the ordinary course of academic teaching or research".However, leaving no "i" undotted or "t" uncrossed, I have added the words "military technology" to the list of prohibited subjects.
Amendment No. 2 is a purely housekeeping or drafting amendment which seeks to make Clause 4(2) clearer. Clause 4(2) preserves the legal restrictions on two types of publication. I hope that I have made the subsection clearer by breaking it up into its two component parts. The first part—which eventually will be lettered (a)—refers to the powers of the Comptroller-General of Patents and new paragraph (b) refers to any other enactment or common law obligation as to secrecy—for example, the Official Secrets Act.
Amendment No. 3 is new. It seeks to replace the previous subsection (4) passed by your Lordships. That made clear that there is nothing in the Act which enables the Government to prevent anyone leaving the country merely because he is possessed of certain information. It followed yet another EC directive.
However, at the belated meeting with the Minister, he expressly assured me that there were no such powers either in the Act or elsewhere, at least in relation to the export of arms and technology. He said that he would repeat that assurance today for the purposes of the record. I shall be glad to accept that assurance from him in due course.
I propose to use the space vacated by that now redundant provision with new subsection (4). Its purpose is to meet yet another of the points raised by the noble Lord—that licensing may in any case be subject to international obligations entered into by the United Kingdom. I believe that the Minister's problem —whatever it is—was anticipated by me and resolved in the wording of Clause 4(1). That states expressly that academic freedom is subject to,any international treaty obligation of the United Kingdom or a Directive of the Council of the European Community".The amendment reinforces that. It also, conversely, makes clear that where any such EC law permits the transfer of technology and technical assistance, the Secretary of State shall grant any necessary licences and not leave the United Kingdom isolated and alone in a sea of secrecy and restriction which is not endured by the rest of the world. The amendment provides that where information is freely obtainable by a touch of a European button, it should not be denied here.
The amendment is, as I said, new and reflects my understanding of the Minister's views. I am sure that if your Lordships agree to the amendment, or, better still, the Minister accepts it, my colleagues in the other place will be happy to fine tune the wording if the Minister considers that necessary.
522 Perhaps I may now briefly turn to the Minister's letter to the noble Baroness, Lady Warwick, who I see is not in her place. The Minister gave an example of overseas students studying programmes on the modification of semi-conductor chips or medicine including toxology. The Minster admits that the professor would need to be teaching something not in the public domain. He would need to know that the student might intend to use the information for what I will in shorthand call "a bad purpose". That is exactly what Clause 4(1) and (2) spell out. They do not leave a decision to some over-zealous prosecutor.
The letter to the noble Baroness, Lady Warwick, confirms that information already in the public domain is exempt from the operation of the Act. Indeed, it is. But it most certainly was not before the new Clause 4 was added as a result of our amendment, which the Government bitterly opposed and which I infer from their present attitude they want to argue is unnecessary. Using the analogy of belt and braces, we want the law to be precisely defined and not left to the possible changing attitudes of Whitehall.
The letter to the noble Baroness, Lady Warwick, talks at great length about transfer controls and technical assistance controls in the case of dual-use technology, which the Minister says, quite rightly, are subject to European Community legislation. Clause 4 ensures that the United Kingdom keeps within the same boundaries as our European partners. The Government will not be able to achieve their apparent ambition of exercising even more stringent control over academic teaching in the United Kingdom than that which applies in the rest of the EC, and imposing on universities an impossible degree of control which they are not willing to undertake themselves.
I shall return to that point in a moment or two. The last point in the Minister's letter to the noble Baroness, Lady Warwick, referred to the new Clause 9 which was added to the Bill by the Government, obviously as an attempt to answer the new Clause 4. I mention that now in anticipation of the Minister offering it as an explanation to your Lordships. The clause simply instructs the Secretary of State to have regard to the need to avoid unreasonable restrictions. What on earth does that mean?
On Thursday 16th May—the day after my meeting with the Minister—I wrote two letters to him attempting to clarify remaining issues and I received a reply by e-mail to my home at one minute to eight o'clock on Saturday evening when, purely by chance, I was sitting at my personal computer working on these speaking notes. I was astonished at some of the contents of the e-mail. Throughout the Bill's earlier stages, the Minister vehemently denied that the Government were seeking to impose a licensing regime affecting students. The Minister said:subsections (2)(c) and (d) of Clause 2 do not cover the licensing of students. The clause contains no power to license students, and no such a power is contained in the — [Official Report, 18/4/02; col. 1120.]My advisers and I believe that Clause 2 as drafted, before it was amended on Report, could definitely have been interpreted as imposing powers to require 523 not the licensing of overseas students themselves—or indeed of United Kingdom students known to be going abroad—but their teachers to control who can be taught and what they can be taught. The Minister's reply to me stated:It is not currently an offence to acquire knowledge which in future could be used in connection with a weapons of mass destruction programme. That is precisely why we are introducing the controls … which will enable the government to prevent transfers of technology".I echo the Ministers word "precisely". Before Clause 2(2) was drastically modified by our amendment, it enabled the Secretary of State to restrict the transfer of technology within the United Kingdom, including from persons who were outside the United Kingdom. Similarly, Clause 3 enables the Secretary of State to impose controls on technical assistance but, as a result of our successful amendment, that is now also subject to the new Clause 4 protecting academic freedom.
In other words, despite the Minister's denial in his email to me, it is clear that the Government still harbour ambitions to license the teaching of some subjects to some students, as is borne out by his rearguard action over Clause 4—his refusal to accept it and reluctance to discuss it with me. Similarly, the Government have consistently denied that they are imposing a responsibility—indeed, a liability—on universities to vet the motives of students seeking to study here. Yet in his e-mail, concerning offences in connection with weapons of mass destruction programmes, the Minister said:You suggested that … should be prevented by entry control of overseas students by the immigration authorities"—which I had done in my letter to the Minister. He then went on to give me a lengthy explanation of why that is impractical.
Short of refusing all students from certain countries or backgrounds—which the universities obviously cannot do, and would not even if they could—how can they do what the Immigration Service, with its vast information resources, cannot or will not do? Let us consider what happened in the United States last year. Certain students took flying lessons and used the information that they obtained to turn four planes into weapons of mass destruction. The combined resources of the Federal Bureau of Investigation and the Central Intelligence Agency were unable to fathom what they were up to. Why then is it to be the responsibility of universities to vet the bona fides of overseas students when, according to the Minister, the Government cannot or will not do so?
Finally, I repeat that of the three amendments in this group, Amendment No. 2 purely tidies up the drafting and the other two are intended to do no more than meet the Government's objections—even though I do not accept that they are valid. Amendment No. 1 is intended unequivocally to answer the Minister's specious claim that academics would be free to teach their students how to manufacture cluster bombs and other weapons of mass destruction. The question for 524 the Minister to answer, equally unequivocally, is: does he accept my compromise offer? Yes or no. I beg to move.
§ Lord Judd
My Lords, during earlier stages of the Bill, I was one of those who raised concern that amendments proposed by the noble Baroness, Lady Miller of Hendon, would not fully meet the security requirements that the Bill is all about. I should again emphasise my continuing involvement, albeit in an unremunerated capacity, in Saferworld and Oxfam, both of which are closely interested in the Bill.
I thank the noble Baroness for tabling her amendments today, because they address one concern—the provision would no longer simply concern weapons of mass destruction. But with some trepidation, I suggest to her that it still does not cover dual use or non-military security goods. That is a real cause for anxiety. Furthermore, if we are serious about the Bill's purpose—and we must be—while it is vital to protect academic freedom, that cannot be at the expense of ensuring that proper controls are in force. I am still concerned that the amendments passed on Report leave some potentially dangerous loopholes, especially with regard to controls on intangible transfers.
As I understand it, under the Bill as amended, people could visit the United Kingdom and gather information that could then be used in other countries. Controlling that activity is not new. For many years, physical forms of such transfer have been controlled—for example, paper letters and computer disks containing blueprints. The extension of those controls to cover intangible means reflects the need to address new methods of communication. Who could have envisaged the introduction of e-mail in 1939 when the most recent export control legislation was passed? Surely, it is logical that the controls already in place should be extended to cover today's methods of communication. I shall be interested to hear what my noble friend has to say on that point.
§ Lord Sainsbury of Turville
My Lords, I should first say that, despite her denial of the fact, the noble Baroness, Lady Miller, and I have been meeting. Indeed, it is a sign of the closeness of our relationship that we were corresponding at eight o'clock on Saturday evening to try to resolve the issue.
I did not want to meet her originally because we were doing important work with Universities UK. It had proposed various scenarios with which it believed that academics were concerned. We wanted to test those scenarios against Clause 9 to see whether it was robust in defending academic freedom. It was, but I shall come to that in a moment.
The clause to which the amendments relate, Clause 4, has introduced some highly damaging loopholes to the Bill, as I explained on Report. As the noble Baroness said, she seeks through the amendments to deal with some of the concerns that I mentioned on Report. While grateful to her for that, 525 I regret that the amendments do not solve the problems with Clause 4. Indeed, they could not do so, because Clause 4 simply takes the wrong approach.
It is worth going back to first principles. The Bill is about regulating exports, trade, intangible transfers and technical assistance that could have extremely serious consequences—consequences that must be the concern of any government with a responsible foreign and defence policy. The Bill can be used to impose controls only within the limits set by Clause 6 and the schedule. That means that it can be used to impose controls only on military equipment or technology, or equipment or technology whose export or transfer risks adverse consequences, such as damage to our national security or its use for human rights abuses, in terrorism or in serious crime.
We must ensure that, in regulating to try to avoid those serious consequences, the Government do not damage fundamental freedoms. As I have said, the Human Rights Act 1998, which the Government enacted, has the precise function of protecting fundamental freedoms, such as the right to freedom of expression. We have, nevertheless, gone further and included what is now Clause 9 to meet the valid request of the academic community for protection of academic freedom in the Bill.
Clause 9 does not use the words "academic freedom", but it goes to the heart of what academic freedom is about, by protecting freedoms for all—not just members of the academic community—to publish or otherwise make publicly available their research. Clause 9 means that the Secretary of State could not impose unreasonable controls on the process of making information generally available to the public or on the communication of information already available to the public, without seriously risking legal challenge. No government will want to risk seeing a court strike down aspects of their export control regime.
As I said, Universities UK sent us a list of scenarios that illustrated the kind of situation about which universities were concerned. We tested them against the dummy orders and the Bill, and I have placed the department's answers in the Library. I hope that everyone will see from those that the Bill protects academic freedom.
§ 3.30 p.m.
§ Baroness Sharp of Guildford
My Lords, I have read the letter that the Minister sent to the noble Baroness, Lady Warwick of Undercliffe. One thing that worries me greatly about the department's answers is that, although they covered the case of, for example, a Pakistani student coming over and taking an MSc course in computer technology, they did not cover the case of a postgraduate student coming to work as a PhD student with a professor and participating simultaneously in the development of his research.
As the Minister knows, that happens frequently. In effect, PhD students act as research assistants to academics in developing their own work. That work is not in the public domain. Academics will not want to 526 put their ideas in the public domain before they have formulated them. There is concern in the academic community that the Bill would restrict relationships with postgraduate students in such an environment.
§ Lord Sainsbury of Turville
My Lords, there is a question about how "public domain" is defined. I am convinced that there will be no problem for that kind of relationship. It would not be considered to be a communication of the sort for which there would have to be a licence. It would be regarded as being in the context of basic research, as that is defined in the regulations.
§ Baroness Miller of Hendon
My Lords, I do not like to interrupt the Minister hut, having heard his answer to the noble Baroness, Lady Sharp of Guildford, I would like him to define what is in the public domain.
§ Lord Sainsbury of Turville
My Lords, the question is what is defined in the clause. As long as the communication is not of secret information to another country, it will be considered to be within the public domain or generally available to the public.
§ Baroness Sharp of Guildford
My Lords, if the work is of an applied nature, it would not, under the terms of the European directive, be defined as basic research.
§ Lord Sainsbury of Turville
My Lords, the point that I was making was that it would be within what is defined, in this case, as being publicly available. It will not be a secret communication and will not, therefore, be covered. That is why I think that the concerns of the academic community about that are unwarranted.
§ Baroness Blatch
My Lords, the question is pertinent to our debate. First, the research described by the noble Baroness, Lady Sharp of Guildford, is not, by anybody's reckoning, in the public domain. We must ask the Minister for the Government's definition of the public domain. The Minister said that it depended on what was and what was not in the public domain. The research referred to would not be in the public domain.
§ Lord Sainsbury of Turville
My Lords, the new orders relating to intangible assets that we propose to introduce will include an exemption for basic scientific research. The point is that there would be no difference for a PhD student working in the circumstances described by the noble Baroness, Lady Sharp of Guildford, or a student being taught as in the examples that we gave. Both should be covered because the work should be publicly available. That is our legal advice.
I am prepared to go on testing the point and to consider any other scenarios that the noble Baroness or anyone else wants to raise. We will test them against Clause 9, and, if there is any doubt, we will examine the situation. However, it must be tested against what is set down. For all the scenarios that we gave, which are similar to those described by the noble Baroness, there is no problem.
§ Lord Avebury
My Lords, the Minister has tried hard to explain what he means, but I am as mystified now as I was at the start of the debate.
527 The Minister has not dealt with the example that was given by my noble friend Lady Sharp of Guildford. The professor may be engaged in applied, not basic, research and may be looking for a product process or method of operation—the definition of applied research. He may enlist the help of a PhD student with his research. The research is not in the public domain. The professor will have no intention that it should reach the public domain until he has reached a conclusion and published the results. While the research continues, it is private, as are communications between the professor and the PhD student. Will the Minister say whether that is one of the scenarios that has been considered? If not, will it be fed in?
§ Lord Sainsbury of Turville
My Lords, we must be clear about it. There comes a point at which it is no longer the case that we want the process to be totally free. For example, in cases in which a student is working on a piece of applied research and there is no intention of making it publicly available, we would have to consider licences.
The Bill must cover a situation in which an academic is giving someone information that is not for the public domain. It must deal with the secret passing on of information about the sort of military technology that we need to cover. If the information is secret to start with and is not in the public domain and if the research is applied research that could be used for the sort of things with which the Bill is concerned, we would have a different situation.
§ Lord Avebury
My Lords, I am sorry to intervene again. Will the Minister consider that an academic carrying out research that will lead to publication—a paper for the journal of the Institution of Mechanical Engineers, for example—will not, for the time during which the research is continuing, want other people to discover what he is up to, in case they pre-empt his results? The research is private and is between him and the research student for the time that it continues, until it gets to publication stage.
§ Lord Sainsbury of Turville
My Lords, I hate to keep coming back to the point. If the aim is to put the research into the public domain, there will be no problem. If there is a doubt about a particular aspect of the research—when it will go into the public domain, for example—that cannot be covered by Clause 9, I am prepared to consider such a case. However, I am sure that such research will be perfectly all right, provided that the purpose is to put it into the public domain.
As I say, we are perfectly prepared to debate that issue because that is what we see to be the essence of academic freedom. But I repeat that if the aim is not to lead towards a paper, that is exactly the situation in which we have to draw the line. Otherwise, we fall into the mistake—which everyone now accepts to be a 528 mistake—of having a piece of legislation which puts all kinds of restrictions on companies not to transfer information, but promptly allows academics to do so.
I now return to the points I was making on the three amendments.
§ Lord Campbell-Savours
My Lords, will there be an opportunity to deal with these matters in the Commons?
§ Lord Sainsbury of Turville
My Lords, Lords amendments have to be considered by the Commons and I imagine that some Members will want to take the matter forward then.
I shall now try to explain why in essence Clause 4 takes the wrong approach and therefore why these amendments do not help. Subsection (1)(c) of Clause 4 would exempt any transfers in the normal course of academic teaching and research control. The noble Baroness, Lady Miller, has made exceptions for weapons of mass destruction and, in amendments under consideration today, for military technology. But the Bill provides the powers to impose controls on the transfer of non-military technology which could have serious consequences. For example, under the schedule, we can impose controls now on the export and transfer of technology capable of use in human rights abuses.
Perhaps I may give your Lordships a concrete example of the type of technology that we currently judge could have such a consequence. We control the export of certain paramilitary equipment and related technology. In particular, the Government announced in 1997 a ban on the export of equipment which we have evidence has been used in torture. That includes items such as electric shock belts and electric shock batons. The ban also applies to the export of the technology needed to develop, make or use these items and we intend similarly to ban its electronic transfer abroad under Clause 2 of the Bill when we have the powers to do so. It is the Government's view that it is quite unacceptable that anyone should he exempt from this ban for any reason whatever.
It can be argued, as the noble Baroness has argued, that it is not likely for the academic community to be engaged in research in this area. But, if I may say so, that is not the point. In the Government's view, it would simply be wrong in principle to have legislation under which such transfers could be carried out legally as of right.
It may well be asked, "Why not simply add the technology I have mentioned to the list of exceptions?". However, every time one makes such an attempt to close a loophole opened up by the clause, one gets closer to Clause 9. Clause 9 was carefully drafted to protect academic freedom on the face of the Bill, without opening up major loopholes in the Bill and then trying to close them up again. We consider it wrong to provide an absolute and immutable exemption in primary legislation for any and all academic research which could have the kind of consequences set out in the schedule. We therefore do 529 not believe that the defects of Clause 4 can be remedied without essentially redrafting it in the form of Clause 9.
Perhaps I may remind the House of one additional point. These amendments today do not restore what was formerly Clause 2(2)(c) and (2)(d) to the Bill which allowed for controls on transfers of technology within the UK where there was reason to expect this would be used abroad. These subsections are essential to the integrity of the Bill Without them, we will have a glaring loophole. As noble Lords are aware, we intend to introduce a requirement to obtain a licence if someone knows or is informed by the Government that a transfer of technology is or may be used in a weapons of mass destruction programme. Without these subsections, such a requirement could not apply if the communication of this technology took place in Britain.
Turning now to another issue, perhaps I may take this opportunity to reassure the House on a point raised by an earlier version of the amendments tabled by the noble Baroness, Lady Miller, and the noble Lord, Lord Rotherwick, which they have now withdrawn. That would have inserted in Clause 4 a provision stating:No order under this Act shall make it an offence for any individual to leave the United Kingdom or otherwise restrict the liberty of any individual to do so".The noble Baroness, Lady Miller, has informed me that site is now satisfied that the Bill will not allow such restrictions to be imposed, which is why the amendment has been withdrawn. However, she asked me whether I would reassure the House on that point and I am happy to do so. Let me now confirm that there is absolutely nothing in the Bill that would allow a government to make it an offence to leave this country or in any way to restrict someone's freedom to leave the country.
The noble Baroness and the noble Lord have proposed to get rid of what is now Clause 4(4) and I am pleased that they have done so because that provision, as it currently stands in the Bill, would, among other things, have effectively disabled Clause 3, a clause which the Conservative Party has previously sought to expand. But I accept that that was not the intention.
The new subsection tabled to replace it would require the Government to issue licences under any directly applicable Community provision in such a way as to meet the requirements in Clause 4(1). I am afraid that such a measure would simply be incompatible with our obligations under the European dual-use regulations. It is true that that regulation provides that licensing of the controls contained within it is the responsibility of member states. But the regulation also makes clear that member states must make those licensing decisions on the basis of certain considerations, including the EU code of conduct on arms exports.
§ 3.45 p.m.
§ Lord Jones
My Lords, I am grateful to my noble friend for giving way. He mentioned controls and it 530 might help the House if he could say what was the annual value of Britain's exports of military equipment, technical or otherwise.
§ Lord Sainsbury of Turville
My Lords, I do not have that figure to hand, but I shall be happy to write to the noble Lord and let him have it. In the discussion of the Bill, we have passed the point of debating whether we should have any controls on our exports. We are now considering the minutiae of that. However, if there are figures I can let the noble Lord have relating to the value of our exports, I shall be happy to provide them.
The new subsection tabled to replace Clause 4(4) would require the Government to issue licences under any directly applicable Community provision in such a way as to meet the requirements in Clause 4(1). I am afraid that such a measure would simply be incompatible with our obligations under the European dual-use regulation. It is true that this regulation provides that licensing of the controls contained within it is the responsibility of member states, but the regulation also makes clear that member states must make those licensing decisions on the basis of certain considerations, including the EU code of conduct on arms exports. Imposing a duty on the Secretary of State to grant certain licences in the interest of academic freedom would constitute a misuse of the licensing powers conferred by the regulations by using the powers for a collateral national purpose.
If I may conclude, it is for the noble Baroness to refine Clause 4 if she wishes. We will not oppose that. But these amendments do not make Clause 4 and a deletion of part of what was Clause 2 of the Bill acceptable. This House has done much to improve the Bill since it began its scrutiny of it in January. It was, before Report, a better Bill than when it left the other place. But in accepting Clause 4 and deleting part of Clause 2, this House has severely damaged the Bill. Therefore, the Government will have to look to the other place to put that right. As I said, we are prepared to continue the debate on Clause 9 and test any further scenarios against it, but we believe that there is no way that the defect of Clause 4 can sensibly be put right.
§ Lord Brightman
My Lords, before the Minister sits down, perhaps I may ask about a matter which puzzles me. I apologise if he has already covered it. Is there an intended distinction between,information in the public domain",in Clause 4 and,information generally available to the public".in Clause 9? I should have thought that in reality the words used in Clause 9 are a definition of the public domain.
§ Lord Sainsbury of Turville
My Lords, it is correct to say that Clause 9 was drafted by legal advisers to the Government. The phrase "generally available to the public" is more commonly used in UK law to denote things that a member of the public, with reasonable diligence, could find and gain access to lawfully. That 531 is the distinction being made at that point. The noble Lord is right in that it takes us a long way towards defining what is meant.
§ Baroness Miller of Hendon
My Lords, the Minister has made various points and if I can I shall try to deal with them all.
First, I am glad that the Minister is confident that the House of Commons will have sufficient time to debate the points made by his noble friend Lord Campbell-Savours. It is our experience that such debates are very short: one, two three, the debate is finished and the legislation comes back. I say that because this matter needs careful consideration. That is why we have tried, as it were, to put everything on the table today, even though we have done it before. We think that this matter is extremely important.
I should like to thank the noble Baroness, Lady Sharp, and the noble Lord, Lord Avebury, for coming right to the point of this. I think that the Minister has misunderstood what we are talking about here. It is all very well to say that ultimately the research may well be put into the public domain—which is the point he sought to make—but much research is undertaken before reaching that stage which is then abandoned and thus never reaches the public domain. Thus the point I seek to make is that research students working on these areas with professors in universities may find that they are breaking the law without even knowing that they are doing so. That is because no licence would have been obtained under the circumstances that the Minister has suggested.
Perhaps I may make one or two other points. The Minister referred again to cluster bombs, weapons of torture and so forth. I can only reiterate once more that the teaching of such technologies does not take place in the ordinary course of academic education. If anyone does become involved in this kind of thing, it is usually, or even always, done for a government department. It is undertaken with the Defence Evaluation and Research Agency. If such technologies were to be sent where they should not go, then the Official Secrets Acts would come into play. That too is not appropriate.
I say the same to the noble Lord, Lord Judd, in response to the point he raised. It is already covered. I should also like to say to the noble Lord—I hope that he will forgive me because outside this Chamber we are always extremely friendly—that I was not at all surprised at his intervention. At the start he supported what I had to say in Committee. He did not do so on Report. On another matter, that of sustainable development, he urged me to vote in favour, and on Report—when noble Lords are not supposed to intercept the Minister—he repeatedly begged his noble friend on the Front Bench to take heed. Then he did not vote for it anyway.
532 I think that the noble Lord likes to play a bit of a game across the Dispatch Boxes.
§ Baroness Miller of Hendon
My Lords, I certainly do acknowledge that and I said as much to the noble Lord in the corridor. However, he made a point of not opposing the Government. I suggest that might possibly be the reason why he has returned to the matter at this particular stage.
I hope that the Minister will not mind my saying that we did not have several meetings. We met once last Thursday, I with my adviser and the noble Lord with his. That meeting took place a long time after our deliberations on Report. It meant that both he and I had to work right up to the last minute on creating something suitable that could be brought before the House. I think that that is an enormous pity.
I also note his words about the letter he wrote to his noble friend Lady Warwick of Undercliffe. I too have written to her to say that I do not think that the points made by the Minister actually hold water. That is an extremely important matter.
The noble Lord said that all this has been tested against the provisions of Clause 9. I do not wish to be ungenerous with regard to Clause 9, but it can be described, if you like, as only the lowest kind of whisper of a restriction. It states only that the,Secretary of State shall have regard—if he has regard, then I support that he will have regard—to the neednot to be unreasonable. Secretaries of State may not be unreasonable about anything; if they are, they are subject to judicial review. They cannot be unreasonable. Furthermore, the decision is still returned to the hands of the Minister. I was not very complimentary about Clause 9 before, and I am even less complimentary now that it has been returned yet again with the suggestion that it represents the end of our deliberations.
The Minister commented that if we do seek to put this wording in place, then the Government will not oppose it. Can the noble Lord tell me whether the Government are going to accept the amendments that I have tabled today?
§ Lord Sainsbury of Turville
My Lords, I wish to make it quite clear that the Government will not seek to oppose the noble Baroness's amendments. If the noble Baroness wishes to amend the clause in this way, the Government will not stand in the way of the noble Baroness's attempt to make Clause 4 as good as she thinks it will become. If the noble Baroness wishes to put forward her amendments, we shall not oppose them because we do not seek to make things more 533 difficult. We think simply that Clause 4, even with the proposed amendments, is quite unacceptable in that it would leave a major hole in the Bill.
§ Baroness Miller of Hendon
My Lords, in that case, despite the fact that I was very happy with Clause 4 as passed in this House with a huge majority, I shall put forward my amendments. I have done this to help the Minister.
On Question, amendment agreed to.
§ Baroness Miller of Hendon
moved Amendments Nos. 2 and 3:Page 4, line 1, leave out "which otherwise affects" and insert "or (b)Page 4, line 13, leave out subsection (4) and insert—(4) Where any directly applicable Community provision imposes any controls on the transfer of technology or on participation in the provision of technical assistance, it shall be the duty of the Secretary of State to exercise such powers as he or she may have under that provision to grant such individual, global or general licences as may reasonably be required to secure that the activities excluded from control by subsection (1) may be carried out under one or more of such licences.On Question, amendments agreed to.
§ Lord Joffe
moved Amendment No. 4:After Clause 5, insert the following new clause—"TRADE CONTROLS: ACTS OUTSIDE THE LNITED KINGDOM(1) This section applies if—
- (a) a United Kingdom person or a person ordinarily resident in the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United Kingdom, and
- (b) the act would, if done in the United Kingdom, constitute a trade control offence (as defined below).(2) In such a case—
- (a) the act constitutes the offence concerned, and
- (b) proceedings for the offence may be taken in the United Kingdom.(3) For the purposes of this section, trade control offences are any unlicensed acquisition or disposal, the movement, or activities which facilitate or are otherwise connected with the acquisition, disposal or movement, of small arms and light weapons, and ammunition for small arms and light weapons.(4) Other acts done outside the United Kingdom and the Isle of Man may also be defined as trade control offences, but only if they are done by a person who—The noble Lord said: My Lords, in our debate on Report on 18th April, I withdrew a similar amendment to this in order to give further consideration to the response of the Minister. Since then I have both written to and discussed the matter with him. Following on that, I have framed the amendment now before the House so as to take into account the concerns raised by the Minister in relation to what he considered the rigidity imposed in the earlier amendment in relation to trafficking in long-range missiles and instruments of torture. This has been 534 achieved by deleting a section in the previous amendment relating to missiles and torture equipment which in practice will be adequately controlled in the proposed secondary legislation, as set out in the dummy orders.
- (a) is a United Kingdom person or a person ordinarily resident in the United Kingdom; or
- (b) is acting under the control of a United Kingdom person or a person ordinarily resident in the United Kingdom."
Noble Lords should note one further change from the amendment we debated on Report, in that the current amendment extends its application to persons ordinarily resident in the United Kingdom as well as to United Kingdom persons and corporate bodies.
The underlying reason for the amendment is to protect the countless innocent civilians, mainly women and children in the developing world, who otherwise would be exposed to death or injury as a result of the activities of United Kingdom small arms traffickers. The amendment would achieve this by applying controls to the extra-territorial trafficking of small arms, light weapons and ammunition.
I should emphasise that the amendment does not call for or seek to achieve an outright ban on the trafficking of such weapons. It simply seeks that the trafficking should be subject to licence. The proposed government legislation purports to introduce controls on the trafficking of arms, but then conveniently provides a loophole by limiting its application only to UK persons conducting some or all of their trafficking while in the United Kingdom. The curious result following that is that small arms and light weapons manufactured in the United Kingdom are subject to export controls, while goods manufactured outside the United Kingdom can be freely trafficked by UK nationals and residents provided only that they remove themselves from the United Kingdom for that purpose.
I do not propose to repeat the arguments—they were fully covered in the debate on Report—but I shall touch briefly on the reasons given by the Minister for opposing the amendment. As I have stated, the first objection relating to an undesirable degree of rigidity in relation to long-range missiles and instruments of torture has been met.
The second objection relates to concerns about enacting extra-territorial jurisdiction and the difficulties faced in the enforcement of such legislation. However, such concerns are impossible to reconcile with the Government's extra-territorial legislation earlier this year in relation to corruption and their intention to introduce extra-territorial controls in relation to long-range missiles and instruments of torture. Surely if the Government believe that they can enforce control of extraterritorial corruption and trafficking in long-range missiles, they can equally enforce the control of trafficking in small arms and light weapons—that is, of course, if they have the will and determination to seriously address the issue of small arms, which they apparently no longer have.
It is difficult to avoid the conclusion that the willingness of the Government to legislate extra territorially on long-range missiles but not on small arms has less to do with the relative difficulties of 535 enforcement than the fact that missiles propose a threat to the United Kingdom whereas small arms do not.
The third objection is that the Government are apparently deeply concerned that ill-informed UK small arms dealers based overseas may be ignorant of the law and unwittingly transgress it. The Government seem to have forgotten the presumption in law that ignorance of the law is no defence. Furthermore, the Government are not obliged to prosecute if the circumstances do not justify it. Further, the Government are unaware of the approximate number of United Kingdom arms traffickers based overseas whom they are so anxious to protect. Surely concern for an unknown number of overseas-based UK arms traffickers does not justify opening up a gaping loophole for every arms trafficker based in the United Kingdom.
None of the Government's reasons for opposition to the amendment stands up to critical analysis. One cannot help suspecting that there are other reasons or pressures for such opposition. I hope that in his response the Minister will deal with these issues or reassure the House that such suspicions are unfounded. The clear message that the proposed legislation gives to UK arms traffickers, whether based in the United Kingdom or overseas, is, "Do not traffic in the United Kingdom. But, if you traffic outside the United Kingdom, as far as we, the United Kingdom Government, are concerned, you have nothing to fear". This is the approach of a government which stated in their election manifesto:We will legislate to modernize the regulation of arms exports, with a licensing system to control the activities of arms brokers and traffickers wherever they are located".The amendment is important because in the developing world small arms trafficking by UK nationals and residents has been a critical factor in leading to the deaths of countless innocent civilians. If the amendment is agreed to, it will act as an important deterrent to United Kingdom arms traffickers and will signal to other countries that the United Kingdom, which has in the past taken a leading role in international attempts to control small arms, is willing to match its words with actions, and the lives of many potential victims of arms trafficking will be protected. I beg to move.
§ 4 p.m.
§ Lord Razzall
My Lords, I support the amendment of the noble Lord, Lord, Joffe, which stands also in my name and that of my noble friend Lord Redesdale. Noble Lords who have followed the debate will know that this is the fourth time the arguments have been rehearsed. It is apparent—unless the Government make a concession today—that we have failed to persuade Her Majesty's Government of the strength of our arguments.
536 This amendment is of a more limited nature than the one that the noble Lord, my noble friend Lord Redesdale and I brought forward on Report. It seeks to limit the restriction on arms brokering on a world-wide basis to the small arms trade, which, as the noble Lord, Lord Joffe, indicated, is a serious international problem.
I have said before that I have some sympathy for the Minister on this issue. He is, to some extent, hoisted by the petard of his full disclosure. He could have come to the House and asked for the Bill to be passed in its current form without disclosing what the orders he proposes to bring forward under the Bill will contain. To some extent, the debate today is not about the form of the clause. We were comfortable with the clause as it was previously drafted but, armed with the knowledge contained in the dummy orders of what the Government propose to do, we are uncomfortable about not having on the face of the Bill the further restrictions suggested by the noble Lord, Lord Joffe.
However, having listened to what the Minister has said on three occasions—no doubt he will say the same today—I remain unpersuaded as to why the Government are not prepared to move on this issue. Your Lordships' House is not a place to play party politics, but in their manifesto the Government stated that they would apply arms controls to UK citizens wherever arms trading activities were performed. I do not regard the dummy orders and the refusal to introduce controls over arms brokering on an extraterritorial basis as satisfying that manifesto commitment.
It is common ground on all sides that the requirement to impose extra-territorial controls for small arms dealing would meet at least five of the six Home Office criteria for extra-territorial legislation. It is simply a question of the Government's judgment that they do not feel it appropriate to impose restrictions on an extra-territorial basis on UK citizens living and working abroad.
I do not want to detain the House very long but I hope that the Minister will offer an explanation. On Report, he conjured up a picture of a UK citizen, living abroad and working as an employee of an arms manufacturing company, who would not be aware that UK legislation prohibited the actions he was taking on behalf of his company, which were perfectly legitimate under the law of the country in which he was resident. I say "he"; I suspect most dealers in arms are still "he's". It is a non-sexist world; nevertheless they undoubtedly would normally be "he's". The Government are concerned that such a person would not be aware of the restrictions imposed upon him—whether he was living in the United States, Australia or wherever—and would not understand that what was perfectly legitimate there was prohibited under the laws of the United Kingdom.
I find that argument difficult to accept when it is applied to dealers in small arms. I find it almost inconceivable that someone who wishes to retain all the advantages of UK citizenship while living in Australia, the United States or wherever, would be 537 unaware that there are requirements and restrictions on dealing in arms which are applicable to him while he is living in that country.
I ask the Minister to respond to the following point. We all know that in the trade of arms dealing commissions are paid. Commissions—
§ Lord Avebury
My Lords, I am grateful to my noble friend for giving way. He will be aware of the exception to his rule; namely, Captain Spicer, who said that he was completely ignorant of the international embargo on arms sales to Sierra Leone when he proposed to supply weapons to that country.
§ Lord Razzall
My Lords, I thank my noble friend for his intervention. As regards the provision of arms, let us take the example of Captain Spicer's successor. I understand that under the Anti-terrorism, Crime and Security Act the Government propose to introduce full extra-territoriality on corruption offences. It is common ground on all sides of the House that the provision on corruption offences will apply to a UK citizen whether that person is resident inside or outside the United Kingdom.
In arms dealing very heavy commissions are often paid which, by most definitions, constitute corruption. So if Her Majesty's Government are not prepared to move on this issue, we shall have a situation whereby a UK citizen living and working for a company in Australia or in the United States will not be caught by any restrictions on brokering arms under the Export Control Bill; however, under the corruption provisions, he will be expected to know that he cannot engage in the practices in which he normally engages in selling arms to the third world. Is not that a foolish position for the Government to get themselves into?
§ Lord Judd
My Lords, the noble Lord, Lord Joffe, is to be congratulated on persisting with this amendment. It is crucial to the credibility of everything that we are trying to do.
There are other arguments besides those that have already been deployed. The Government have argued, for example, that it is difficult to justify drawing a distinction between small arms and light weapons on the one hand, and other weapons on the other. However, there are clear classifications on what constitutes small arms. For example, the "Joint Action on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons" of December 1998 treats small arms and light weapons as a special case, and its annex contains a list of items which are to be regarded as falling within this category. In addition, the fact that there has been a United Nations international conference on small arms and a UN firearms protocol surely more than adequately indicates the international importance given to them as an identifiable category and a special case.
I want to say something slightly difficult to my noble friend the Minister, whom I greatly respect. Inevitably, the longer the Government oppose this measure, the greater is the speculation as to what is really behind 538 such opposition. Some are already asking whether it could be that there is a convenient loophole here for governments. Perhaps it is envisaged, for example, that activity of a UK offshore broker might on some occasion be of help to government. There is a considerable grey area when considering the activity of brokers in conflict zones. Brokers can indeed be a temptation to governments. I think, for example, of the recent official report by the Dutch Government on the 1995 Srebrenica massacre, which was published last month. According to the evidence from the Netherlands, US intelligence agencies secretly broke a UN arms embargo during the 1991–95 war in the former Yugoslavia by channelling arms through Islamic Jihad groups which Washington is now hunting down across Europe and Asia.
I am not implying that the UK Government are in any way involved in such activities, but if the Government do not control British dealers overseas, cynics will inevitably ask whether this is a loophole of convenience and just how far the Government in reality want to regulate all such activities. Does my noble friend not see how that doubt can arise? Or could such a loophole be left to be unscrupulously exploited at some future date by Ministers not as honourable as my noble friend the Minister on the Front Bench?
As the noble Baroness, Lady Miller, said, she is a good friend, but a stern critic. I have to say to my noble friend the Minister, and I hope that the noble Baroness is listening, that I believe that the amendment is central to the credibility and purposes of the Bill. If the Government insist on resisting the noble Lord, Lord Joffe, and if he decides to divide the House, I shall not be able to support the Government in their opposition to his amendment.
§ 4.15 p.m.
§ The Earl of Sandwich
My Lords, I want to reassure the Minister that the Government are not alone on the question of arms control, in case they are feeling isolated. There are humanitarian agencies all over the world whose members work on this issue every day. I can give examples to illustrate that in some parts of Africa—for example, in Ethiopia, where World Vision has conducted a valuable survey on the impact of small arms—the gun culture is being successfully confronted by NGOs, which are often working alongside government in conflict resolution and development programmes. So the NGOs are engaged, and accordingly expect corresponding advances at international level.
I take a slightly different approach to the amendment from that of my noble friend. I feel confident that the Government are moving steadily towards the extra-territorial control of small arms brokers and trafficking as stated in the 2001 manifesto. We, on behalf of many specialised organisations and concerned individuals welcome that. We should encourage, not criticise, Ministers who represent the Government and who therefore understandably have to move one step at a time.
539 I have re-read the Minister's response on Report. It is arguable that he was, in fact, accepting the amendment and not rejecting it. He said:as I explained, the Bill would not preclude the introduction of controls along the lines of those proposed in the amendment. It would permit the Government to introduce extra-territorial controls on trafficking and brokering in small arms and light weapons should we consider that appropriate in the light of significant new developments—such as, for example, reaching international agreement to apply trade controls extra-territorially or to ban certain exports".—[Official Report, 18/4/02; col. 1145.]When I re-read those remarks, I was much more confident than I had been the first time.
I must press the Minister again on the point on which I intervened then. Surely, if the Government are so close to recommending an extension of controls within an international agreement, it would be logical to reflect such an extension in this Bill. That would demonstrate renewed commitment to the manifesto and would he wholly consistent with the earlier response to public consultation on the White Paper, which was very favourable. It would also give a lead to the international community in line with its already prominent role in the UN programme of action and the new EU common position.
It is worth quoting the remarks of the former Foreign Secretary, Robin Cook, on 27th July 1997, when the Government took unilateral action on torture equipment. He said:We have considered with our European partners how they might align themselves with this policy. While there is broad support for the idea of controlling equipment which evidence shows may be used in torture … not all our partners control the export of the same equipment".In other words, this amendment could be a catalyst to the international agreement which the Minister seeks rather than a consequence of it. I appreciate that there are subtleties in arms negotiations, but I submit that Britain's hand would he strengthened.
I noted that the Minister made no comment on the precedents which were offered last time by the noble Lord, Lord Judd, and others for extra-territorial controls in the areas of anti-terrorism, corruption, drugs, chemical weapons, sexual offences and landmines. The list is very long now.
Understandably, the Minister said that he was concerned about practicalities as well as about moral imperatives. However, on the question of enforcement, as controls will have to be in place for long-range missiles and torture equipment, we are talking of an extension of controls already in place. There is no need for a new definition of brokering, for example, or trafficking. In many countries, controls will already be in place. Taking the Minister's Australian example, if domestic jurisdiction is satisfactory, there may be no need for any further licensing.
Surely the Minister will agree that, difficult as enforcement will always be, in those other cases of corruption and so on, it was decided that practical difficulties should not stand in the way of legislation, so that UK traffickers and brokers, wherever they are, 540 should know exactly where they stand. I remind the noble Baroness, Lady Miller, who has left the Chamber, that she has also spoken of residence in the UK, which would be another extension of this amendment. In time, we shall be able to persuade our EU and other partners, some of whom are ahead of us in this, that legislation is as important as co-operation.
In conclusion, I hope that the Minister will agree that this amendment merely continues a process that the Government have already accepted.
§ The Lord Bishop of Birmingham
My Lords, in supporting this amendment, I know that I speak for my colleagues on this Bench, notably for my brother the right reverend Prelate the Bishop of Manchester, who is sitting beside me. I thought that he would be talking today and not me.
The arguments I wish to make have already been advanced and I shall not repeat them except to underline two points. First, the precedent for extraterritorial jurisdiction in pressing matters like this already exists. Secondly, I emphasise the humanitarian point: the terrible consequences of traffic in small arms and light weapons, particularly in Africa; and the cost not only to those populations but to other parts of the world, including this country. The oncosts of the use of small arms in civil conflicts is truly terrible and wasteful of every type of human resource. Every step should be taken to work effectively against it.
§ Lord Avebury
My Lords. I was not trying to undermine the argument of my noble friend Lord Razzall when I intervened in his remarks to point out that the case of Colonel Spicer—whom I inadvertently demoted to captain—provides an example of someone operating from the United Kingdom who set up a deal to procure weapons overseas and supply them to a third country. Colonel Spicer went to Vancouver, where he met a Thai businessman, and he arranged for the shipment of 10 million dollars-worth of light weapons to Sierra Leone in contravention of a UN embargo. Some noble Lords will remember that that led to inquiries by the Select Committee on Foreign Affairs in another place, to the commissioning of an inquiry by a distinguished High Court judge, and to the Government's getting a lot of egg on their face for allowing it to happen.
I also wanted to underline the fact that such transactions can readily be undertaken even now. I wonder whether the Minister watches the Mark Thomas show on television. I gather that he does not. I happened to attend a recent recording of the show, at the Bedford Arms, in south London, and I should like to describe what Mr Thomas put over in the hour that we were with him. He set up a dummy company with a fax machine, an e-mail address and a letterhead and he sought quotations from a subsidiary of BAE—Heckler & Koch, from Switzerland—to supply light arms to Zimbabwe and Algeria. He showed that it was quite easy to get the company to commit itself to one of those transactions. In the other case, however, the company suggested that it might be better if the dummy company went to Finland, where the company's associates might be able to fill the order.
541 So Mr Thomas talked to the people in Finland and found that there was no problem at all in acquiring the weapons either in Finland or in Switzerland to sell to these sensitive destinations—Zimbabwe, where there is an embargo, and Algeria, where there is a very high casualty rate in extra-judicial executions, as the Minister is undoubtedly aware. The point is that Mr Thomas did that with absolutely no resources at all. If someone like that—who, as he himself confessed, knows nothing about the arms trade—can enter into such a venture for the first time and have no difficulty procuring weapons for transfer to such sensitive destinations, then surely we do need legislation like this.
It is clear from examples that have been given that people have genuinely engaged in such transactions. As the pages of Africa Confidential reveal, people like John Bredenkamp do procure weapons from a secure base in the home counties for transfer to countries in Africa where they are used to kill people. As the noble Lord, Lord Judd, I think, has already remarked, light weapons kill a great many more people in Africa than do the heavier weapons that occupy so much of our attention. I therefore beg the Minister to take this amendment seriously. I hope that noble Lords will pass it. If we do not, there will be a very severe gap in the Bill which we shall live to regret.
§ Lord Brennan
My Lords, I should like to identify a fact that dictates the course of this amendment to this clause The fact is that, every year, 5 million people, including 2 million children, are killed by small arms. Bullets kill many more people than do bombs. That destruction, coupled with the incalculable numbers who are injured by firearms, should require any international legislature to consider its powers to prevent such carnage. Four considerations therefore arise if, acting as a civilised legislature, we wish to deal with such a problem. The first is that, surely in the United Kingdom, the unlawful brokering of small arms which creates such death should be forbidden. Whether the citizen of our country who is doing it is resident here or abroad, the morality is the same, whatever the geography.
Secondly, I said that dealing should be dealt with by a legislature if it was unlawful. As I understand it, Amendment No. 4 embraces a licensing system that someone living abroad could take advantage of just as he might if he were brokering in this country. The third consideration is that a person dealing in arms is doing so for profit. It is usually a consequence of business life that one learns the law that dictates how one can make that profit. The idea that a foreign resident UK broker cannot be proceeded against because he might not know the law borders on the absurd. The fourth consideration is extra-territoriality, which is a difficult problem. I acknowledge the problem, as evidenced in the remarks at Report stage of my noble friend the Minister. However, which is better—no action at all to meet a problem, or some action that involves difficulty? A civilised country would surely choose the latter.
542 Those four considerations to try to overcome that fact found Amendment No. 4. We on these Benches historically have taken a firm stance against illegal brokering in arms. I propose to maintain that stance.
It appears from what the Minister said on Report that there is a solution to this problem for our national legislature, which the Government foresee. I shall identify it and invite my noble friend the Minister to confirm it. Under Clause 6 of this Bill, there are general restrictions on control powers. In other words, the Government cannot control exports unless the provisions of Clause 6 are met. The principal provision of Clause 6 is that the powers can be exercised so as to permit this country to give effect to a provision of European Community law or to an international obligation. In other words, if Europe takes concerted action against the brokering of small arms, so may we. If the international community takes a similar course, we will join it. That solution is not a perfect one.
However, I invite the Minister to confirm that this clause, which refers to a schedule to the Bill that plainly involves controlling the brokering of small arms, will be vigilantly considered by the Government, and that in Europe they will pursue European action for the kind of control that the clause envisages, as I am sure they will do internationally.
My noble friend the Minister has a great intellectual capacity to speak clearly when the occasion requires it and not to retreat into the sometimes obscure verbiage of a Ministerial brief.
We on these Benches look forward to a clear, unmistakable commitment that, by the solution I have identified or others, the United Kingdom will through this legislature control arms brokering by any of our citizens anywhere, which is unlawful and contributes to the carnage that I have identified.
§ 4.30 p.m.
§ Lord Redesdale
My Lords, at Report stage the Minister said that France, Germany, Belgium and Holland either had or were in the process of introducing legislation to control arms brokers. The arguments behind this amendment have been well rehearsed. However, it is unfortunate that this country is not taking a lead in introducing legislation in this field, but will be following and waiting for others to take the initiative.
As the right reverend Prelate and many noble Lords have pointed out, there is a moral argument for supporting this amendment. On hearing that an arms control Bill is being considered, many in this country would believe that this provision is essential to such a Bill becoming law.
If the Government do not accept it, I very much hope that the noble Lord, Lord Joffe, will press this amendment, and we on these Benches will support him.
§ Lord Sainsbury of Turville
My Lords, I begin by assuring noble Lords that there is no other reason for our approach to the amendment tabled by the noble Lord, Lord Joffe, than that we believe it to be 543 impractical. We are not looking to brokers to help us in some situations. We simply believe that the amendment is impractical.
Since the last debate, we have looked at the American situation. The American laws on extraterritorial brokering have been quoted a number of times. It is significant that not one prosecution has been mounted under US brokering law. That clearly confirms our feeling about the impracticality of this amendment, and I shall return to that point.
We greatly sympathise with the aims behind this amendment. However, we do not believe that it is a practical course of action; nor do we believe that it enhances our moral standing on this issue to pass a piece of legislation which cannot be practically enforced.
I turn to the question of ignorance of the law. Of course, subject to the Human Rights Act, ignorance is not a defence in UK law. That is why we use extraterritoriality very sparingly and only in areas subject to international condemnation, where any reasonable person should know that what he or she is doing is wrong.
The noble Lord, Lord Razzall, suggested that, unlike the anti-terrorism Act and the corruption measures under it, the Export Control Bill will not apply at all to a UK citizen in, for example, the United States or Australia. That is not correct. Under this Bill, a UK citizen living abroad will, under the dummy orders, be subject to controls if he trades in arms to any embargoed destination or trades in torture equipment or certain missiles.
I can tell the noble Earl, Lord Sandwich, that there is no international agreement in prospect either to ban trade in small arms or light weapons or to apply trafficking and brokering extra-territorially. For example, the dummy orders are fully consistent with the EU agreement referred to, and all the other examples that have been cited on bribery or corruption extra-territorially are associated with international agreements.
The noble Lord was quite right to assume that I do not watch the Mark Thomas programmes. However, having children who watch it, my attention is always drawn to occasions on which the Government are embarrassed by Mark Thomas, so I am aware of this particular incident. Of course, the point here is that had Mark Thomas been a real arms dealer or had the Bill been in force, as we understand it he would have committed an offence by what he did because, first, he was in the UK and, secondly, Zimbabwe is an embargoed destination. So it is perhaps as well that it was a television programme and not the real thing in this case.
§ Lord Avebury
My Lords, in that case, would it be perfectly in order for him to procure arms to be sold to Algeria?
§ Lord Sainsbury of Turville
No, my Lords. He would have been caught because he was doing it in England, which would clearly have made it an offence.
544 I turn to the more substantive point raised by my noble friend Lord Brennan.
§ Lord Redesdale
My Lords, if, however, he held a British passport but did it from Calais, which would have taken him no more than a couple of hours to reach, it would have been legal.
§ Lord Sainsbury of Turville
My Lords, the point that is always worth remembering in these cases is that the concept that it is very easy to do this without any contact or the use of any measure in England is rather more difficult than people assume; and, of course, there is a list of embargoed destinations which covers the main areas that we want to see dealt with by this kind of legislation.
I turn to the key point made by my noble friend Lord Brennan. I want to answer his question as directly as he put it. I confirm that the Bill will allow the Government to implement any international agreement in arms trafficking and brokering, whether an EU agreement or an agreement in another forum. That is fundamental to the Bill. As the noble Lord, Lord Razzall, pointed out, we have put very transparently into the remit here the fact that at present we do not propose that the regulations should seek to control small arms brokering that takes place abroad, but this Bill gives us the power to do that. At this time we shall use it only for the three areas that I have mentioned.
The amendment proposed by the noble Lords is, of course, similar to the amendment tabled on this issue by the noble Lords, Lord Joffe and Lord Phillips, at Report stage. However, this amendment includes a new provision, allowing extra-territorial controls to be imposed on UK residents as well as UK persons. I shall in a moment return to that issue and the Government's concerns about its implications.
A further difference is that, in the light of the explanation that I gave on the specific point on Report, noble Lords have agreed to omit from the current amendment the outright statutory ban on trade in particular categories of equipment that was contained in the previous amendment of the noble Lord, Lord Joffe. I am grateful to noble Lords for recognising the Government's concern over that particular aspect of the Report stage amendment.
However, I am sorry that noble Lords remain unwilling to take on board the Government's even greater concerns about the implications arising from the central aim of the amendment; namely, to extend extra-territorial jurisdiction to trade in small arms, light weapons and ammunition. Before I expand on the nature of those concerns, I should like to remind the House that the issue before us is not a decision about doing something on arms brokering, or doing nothing. I believe, therefore, that it is wrong to present the amendment in such stark terms. It must not be forgotten that the Government are already committed to taking action on arms brokering that is truly ground-breaking. There will, for the first time, be comprehensive powers in new primary legislation that 545 allow controls to be imposed on all arms trafficking and brokering carried out both here and, in the case of UK citizens, abroad.
We have stated that we shall use the new powers in the Bill to prohibit any UK person, wherever he is located, from trafficking and brokering in arms to embargoed destinations or trafficking and brokering in torture equipment, or long-range missiles, to any destination whatever. At the same time, we are committed to using the powers under the Bill to control anyone in the UK—be he a resident or a UK national—who wishes to trade in any military equipment to any destination. This two-pronged approach will ensure that no one in the UK will be allowed to traffic or broker in arms without a licence, and will provide further that any UK person overseas who, without a licence, engages in trafficking and brokering to embargoed destinations, or in torture equipment or in long-range missiles, will he liable to prosecution if he sets foot again in this country.
The noble Lord, Lord Joffe, cited the Government's manifesto commitment. I believe that the Government are clearly fulfilling their manifesto commitment on trafficking and brokering. The Bill provides for trafficking and brokering controls to be applied in the UK and abroad, and we are already committed to framing controls that will apply both here and overseas. I should remind the House that a small number only of other countries have so far managed to introduce any controls in this area. Therefore, the Government's commitment to legislate to control trafficking and brokering activities of UK persons both here and overseas puts this country in the front rank of nations that are prepared to take serious steps to combat the scourge of illicit trade in arms.
Consequently, it is beyond doubt that the Bill already allows tough and meaningful action to be taken against illicit arms brokering, and that the Government are already committed to taking such action in secondary legislation under the Bill. Instead, the question that needs to be asked is whether the amendment would enable the Government to tackle illicit brokering more effectively than our current proposals would allow. The Government's firm view is that not only would the amendment do little or nothing in practice to strengthen our ability to prevent the supply of arms to conflict zones, it would actually be likely also to undermine our efforts to target the serious activities that our proposed extra-territorial controls on trafficking and brokering already address. Perhaps I may explain why we hold that view.
Trafficking and brokering in arms to embargoed destinations, and trafficking and brokering in long-range missiles and torture equipment, are all activities that the Government would, in almost all cases, be seeking to prohibit in their entirety. They are all activities that are subject to widespread international condemnation. For these same reasons, we believe that any UK person, whether based in this country or settled overseas, could reasonably be expected to know that involvement in such activities would be likely to be an offence.
546 The same simply cannot be said of trade in small arms, light weapons and ammunition to non-embargoed destinations; nor can it be said of the wide range of activities that may facilitate such trade, such as insurance or marketing, which this amendment seeks also to control. The vast majority of such trade and services are entirely legitimate, and are carried out in full accordance with the laws of the exporting country. There is certainly no international agreement that there should be a presumption against allowing trade in small arms to responsible end–users to continue. Nevertheless, the amendment seeks to oblige the Government to assert extra–territorial control over entirely legitimate commercial transactions carried out in overseas countries. What would the effect of this be?
In the first place, it would make a criminal of any UK person settled and living overseas and involved in exports of small arms with the full blessing of his country of residence, who, for whatever reason, failed to apply also to the UK Government for a licence to go about his job. Perhaps I may give the House an example. It is slightly different from the one cited by the noble Lord, Lord Razzall: it relates to a UK national, who is settled in New Zealand, having lived there for 40 years. He has a contract to supply small arms ammunition to law enforcement authorities in Canada. He exports the ammunition to Canada in full compliance with New Zealand's laws on arms export control, and confidently believes that the business in which he is engaged is both of value and entirely legitimate. However, the instant that this amendment were to enter into force, his actions would be criminalised under UK law. He would then be subject to possible arrest and prosecution upon his return to the UK.
The same would apply in respect of a UK person settled overseas who provided insurance cover for an overseas export of small arms, without first obtaining licence to do so from the UK Government—
§ Lord Razzall
My Lords, perhaps I may intervene at this point. I do not believe that the Minister has dealt with our bigger concern. It is not the person living in New Zealand; we are concerned with the UK national, who is resident off-shore in a territory that is not regulated. On the Government's admission, such an individual would not be allowed to deal in secondhand torture equipment that he obtains from, say, the Chilean Government because they no longer use it. However, he would be allowed to deal in the small arms that the Chilean Government had used to shoot people after they had been tortured. That is our main worry.
§ Lord Sainsbury of Turville
My Lords, perhaps I may correct the noble Lord. The three prohibited categories are missiles, torture equipment and arms embargoes. Therefore, that person could not be dealing in such equipment.
§ Lord Razzall
My Lords, such an individual could not deal in torture equipment, but, under the 547 Government's legislation, he could deal in the small arms that were used to shoot people after they had been tortured.
§ Lord Sainsbury of Turville
My Lords, I am sorry that the noble Lord has not recognised that there is a very clear distinction here. I believe that I have made it clear in all the speeches that I have made thus far; indeed, I have already drawn attention to it in this response. There is a clear distinction to be made—the only one to be made in this area—between matters where there is international condemnation, which means that people will be aware of the situation, and areas where there is clearly no international condemnation involved. That is the distinction that applies in this case, and I believe it to be appropriate.
It is well to focus on such differences. These are the kind of people over whom we would be asserting extraterritorial control. Some might point out that the UK enforcement authorities could simply decide to take no action against such persons, and concentrate on prosecuting the more unsavoury types of arms brokers or suppliers who we can all readily bring to mind. However, that will not do; indeed, it would be irresponsible in the extreme for the Government to create a category of offences—namely, unlicensed trade in small arms, light weapons and ammunition—in the full knowledge that action would only be taken on such offences, when identified, in some circumstances, which would probably be unknowable to those concerned.
It would certainly be very difficult to take a decision to prosecute in the hypothetical case that I mentioned, but routinely to ignore such technical breaches of the law would damage the credibility of the new brokering controls across the board. We simply cannot make law that is destined to be enforced only on a "pick and choose" basis. The usual result of such an approach to enforcement of a particular law is that the law for all practical purposes quickly becomes unenforceable.
Another important factor that must be considered is the very considerable difficulty that would be involved in gathering evidence to prosecute UK persons for activities carried out in overseas countries that remain entirely legal there. Successful enforcement of extraterritorial controls depends to a very great extent on securing the full co-operation of the authorities of the overseas country where an offence under UK law by a UK person is alleged to have taken place, not least in helping or allowing UK investigators to gather evidence there. However, there would almost certainly be great difficulty in securing such co-operation in order to prosecute UK persons for actions that had been carried out in an overseas country in full compliance with that country's export control laws.
All these enforcement difficulties would be made even greater by the fact that the amendment also seeks to apply extra-territorial controls to UK residents as well as to UK nationals. The effect of that would be that a foreign national ordinarily resident in the UK who carried out in his country of nationality a small arms export in full accordance with his country's laws 548 would be subject to possible arrest and prosecution upon his return to this country. Such a sweeping assertion of extra-territorial jurisdiction on the part of the Government would be likely to attract exactly the kind of criticism that the UK has rightly directed at other countries which have extended extra-territorial controls to UK nationals for activities that do not constitute an offence in this country.
Suggestions that without the amendment the Government's response to these difficulties will be to do nothing on small arms are quite untrue. What these enforcement difficulties have done is to convince us that the course of action which is most likely to lead to successful eradication of illicit trafficking and brokering in arms is for the Government to press for international agreement. The Government are working to achieve international agreement to take action to regulate the activities of those engaged in brokering in accordance with the UN Programme of Action on Small Arms and Light Weapons agreed in July last year. And of course the EU Common Position recently agreed on trafficking and brokering has provided a basis for the framing of national legislation on trafficking and brokering across the whole EU.
I reiterate in this context the very important point that the Bill as drafted does not preclude the introduction of controls along the lines of those proposed in the amendment. Clause 5 as it stands would allow the introduction of extra-territorial controls on trafficking and brokering in small arms and light weapons and on any other equipment that falls into one or more of the categories set out in the schedule to the Bill. There is therefore no doubt that the UK would be able to implement—the noble Lord. Lord Brennan, asked about that—under the Bill extraterritorial controls on trade in small arms if changing international circumstances warranted that.
In support of the proposal to extend extra-territorial controls to legitimate trade in small arms as well as to prohibited activities, it has been argued that the United States already operates extra-territorial controls on trafficking and brokering in small arms and other military equipment, and that if the US can operate such a system the UK should be able to do so also. In this context I was interested to note recently a report on the US system of arms brokering controls published by the highly respected US nongovernmental organisation, The Fund for Peace, which actively campaigns for tougher controls on the arms trade. The report expresses great concerns over the ability of the US authorities to operate and enforce their very wide system of controls on arms brokering. It highlights the very telling fact that not one prosecution has ever been mounted under the US brokering law, either for brokering offences carried out within the United States or overseas. The report goes on to say that while the US law on paper is as comprehensive and far-reaching as it possibly could be, it will only ever be as good as its enforcement, and this the report finds to be "nil".
That demonstrates that there is a world of difference between framing very wide extra-territorial controls in legislation, which need little more than the sweep of a 549 pen, and trying to give such controls meaning and integrity through ongoing successful application and enforcement. Let me repeat that the Government are already committed to taking very real steps to control arms trafficking and brokering both here and abroad. Under the controls we have proposed it will be an offence for any UK person overseas to traffic or broker in small arms to embargoed destinations or to a third country in the knowledge that the arms are destined for an embargoed destination. Moreover, the proposed licensing regime for trafficking and brokering in all items on the UK's Military List, including small arms and light weapons, will apply where any relevant part of the transaction—be it a single fax or telephone call—takes place in the UK. And do not forget that the Bill already contains the powers that would allow the Government to extend extra-territorial controls to legitimate trade in small arms, for example in order to implement any international agreements reached on this matter.
We believe that all these measures, combined with the measures we are taking to encourage international co-operation on this issue, will be effective in combating illicit brokering of small arms by UK nationals. In contrast, the amendment would create a set of offences in primary legislation that would be unworkable in practice and would risk undermining the credibility of the whole control regime. In view of that, I ask that the amendment be withdrawn.
§ Lord Joffe
My Lords. I thank noble Lords who have spoken in support of the amendment. The essence of the Minister's response is that it is impractical to impose the controls that we are discussing. However, he has not answered the question about which I wrote to him: namely, why is it practical to enforce controls on the trafficking of long-range missiles and instruments of torture but not on small arms? I have received no answer to that.
The Minister mentioned the USA and sought to gain great comfort for his case from the fact that there have been no prosecutions so far under the US brokering law. However, the test of good legislation is not the number of prosecutions which result from it but whether the activity which it seeks to address is affected. We have no information on that at all. If there was a determination on the part of the Government to impose controls on small arms and light weapons, they could enforce it. I speak from my experience as a human rights lawyer in South Africa where the government were determined to impose their will on their subjects and had no difficulty in prosecuting many of my clients who expressed their views in the United Kingdom where they were free to do so. That evidence was used in order to gain convictions in South Africa.
The Minister said that the legislation we are discussing aligns with the manifesto commitment to control small arms trafficking wherever it is carried out. That cannot be so. It covers a tiny proportion of arms, which are enumerated, but not with the most important of all from the point of view of innocent civilians in the developing world who will be exposed 550 to the dangers of injury and death through the trafficking of arms by UK nationals. It is extraordinary that in considering the relative importance of this handful of UK arms traffickers based overseas, the Government show no concern in balancing the importance of the legislation vis-à-vis the ultimate victims of that arms trafficking.
I am not persuaded by the reasons advanced by the Minister. I wish to test the opinion of the House.
§ 4.58 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to?
§ *Their Lordships divided: Contents, 71; Not-Contents, 129.551
|Division No. 1|
|Ackner, L.||Lyell, L.|
|Addington, L.||McNally, L.|
|Alton of Liverpool, L.||Maddock, B.|
|Ampthill, L.||Manchester, Bp.|
|Ashcroft, L.||Moynihan, L.|
|Attlee, E.||Newby, L.|
|Avebury, L.||Oakeshott of Seagrove Bay, L|
|Beaumont of Whitley, L.||Palmer, L.|
|Birmingham, Bp.||Park of Monmouth, B.|
|Blood, B.||Perry of Southwark, B.|
|Bowness, L.||Prior, L.|
|Bradshaw, L.||Razzall, L.|
|Brooke of Sutton Mandeville, L.||Redesdale, L. [Teller]|
|Brookeborough, V.||Rennard, L.|
|Bruce of Donington, L.||Rodgers of Quarry Bank, L|
|Carlisle of Bucklow, L.||Roper, L.|
|Cavendish of Furness, L.||Salisbury, Bp.|
|Clement-Jones, L.||Sandwich, E.|
|Colville of Culross, V.||Scott of Needham Market, B.|
|Craig of Radley, L.||Selborne, E.|
|Dholakia, L.||Selsdon, L.|
|Elles, B.||Sharp of Guildford, B.|
|Ezra, L.||Smith of Clifton, L.|
|Gray of Contin, L.||Stoddart of Swindon, L.|
|Greengross, B.||Tenby, V.|
|Hamwee, B.||Thomas of Walliswood, B.|
|Holderness, L.||Vinson, L.|
|Hooper, B.||Wallace of Saltaire, L.|
|Hooson, L.||Walmsley, B.|
|Howarth of Breckland, B.||Warnock, B.|
|Joffe, L. [Teller]||Watson of Richmond, L.|
|Laird, L.||Weatherill, L.|
|Laming, L.||Wigoder, L.|
|Lane of Horsell, L.||Wilberforce, L.|
|Lester of Herne Hill, L.||Williams of Crosby, B.|
|Acton, L.||Borrie, L.|
|Ahmed, L.||Bragg, L.|
|Alli, L.||Brennan, L.|
|Amos, B.||Brooke of Alverthorpe, L.|
|Archer of Sandwell, L.||Brookman, L.|
|Ashley of Stoke, L.||Burlison, L.|
|Ashton of Upholland, B.||Campbell-Savours, L.|
|Bach, L.||Carter, L.[Teller]|
|Barnett, L.||Christopher, L.|
|Bassam of Brighton, L.||Clark of Windermere, L.|
|Berkeley, L.||Clarke of Hampstead, L.|
|Bernstein of Craigweil, L.||Clinton-Davis. L.|
|Blackstone, B.||Cobbold, L.|
|Blease, L.||Corbett of Castle Vale, L.|
|David, B.||McIntosh of Haringey, L. [Teller]|
|Davies of Coity, L.|
|Davies of Oldham, L.||McIntosh of Hudnall, B.|
|Dixon, L.||MacKenzie of Culkein, L.|
|Donoughue, L.||Mackenzie of Framwellgate, L|
|Dormand of Easington, L.||Masham of Ilton, B.|
|Dubs, L.||Mason of Barnsley, L.|
|Elder, L.||Massey of Darwen, B.|
|Evans of Parkside, L.||Merlyn-Rees, L.|
|Evans of Temple Guiting, L.||Milner of Leeds, L.|
|Evans of Watford, L.||Mishcon, L.|
|Falconer of Thoroton, L.||Mitchell, L.|
|Farrington of Ribbleton, B.||Morris of Aberavon, L.|
|Morris of Manchester, L.|
|Faulkner of Worcester, L.||Nicol, B.|
|Fyfe of Fairfield.L.||Patel of Blackburn, L.|
|Gale, B.||Pendry, L.|
|Gilbert, L.||Peston, L.|
|Goldsmith, L.||Pitkeathley, B|
|Gordon of Strathblane, L.||Plant of Highfield, L.|
|Goudie, B.||Puttnam, L.|
|Gould of Potternewton, B.||Radice, L.|
|Graham of Edmonton, L.||Ramsay of Cartvale, B.|
|Gregson, L.||Randall of St. Budeaux, L.|
|Grenfell, L.||Rendell of Babergh, B.|
|Grocott, L.||Richard, L.|
|Hardy of Wath, L.||Richardson of Calow, B.|
|Harris of Haringey, L.||Role of Ipsden, L.|
|Harrison, L.||Rooker, L.|
|Haskel, L.||Sainsbury of Turville, L.|
|Hayman, B.||Sawyer, L.|
|Hilton of Eggardon, B.||Scotland of Asthal, B.|
|Hollis of Heigham, B.||Serota, B.|
|Howells of St. Davids, B.||Sheldon, L.|
|Howie of Troon, L.||Simon, V.|
|Hughes of Woodside, L.||Stone of Blackheath, L.|
|Hunt of Chesterton, L.||Strabolgi, L.|
|Hunt of Kings Heath, L.||Symons of Vernham Dean, B.|
|Irvine of Lairg L (Lord Chancellor)||Taylor of Blackburn, L.|
|Janner of Braunstone, L.||Tomlinson, L.|
|Jay of Paddington, B.||Turnberg, L.|
|Jones, L.||Turner of Camden, B.|
|Jordan, L.||Wedderburn of Charlton, L.|
|King of West Bromwich, L.||Whitty, L.|
|Kirkhill, L.||Wilkins, B.|
|Lea of Crondall, L.||Williams or Elvel, L.|
|Lipsey, L.||Williams of Mostyn, L. (Lord Privy Seal)|
|Lofthouse of Pontefract, L.||Williamson of Horton, L.|
|Macdonald of Tradeston, L.||Woolmer of Leeds, L.|
§ [*The Tellers for the Contents reported 71 votes. The Clerks recorded 70 names.]
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.8 p.m.
Lord Campbell-Savours moved Amendment No. 5:
After Clause 11, insert the following new clause
§ "DEFENCE EXPORTS SCRUTINY COMMITTEE
§ (1) There shall be a Committee, to be known as the Defence Exports Scrutiny Committee (in this section referred to as "the Committee") to examine United Kingdom defence export licence applications and the licensing process.
§ (2) The Committee shall consist of nine members—
- (a) drawn both from the members of the House of Commons and from the members of the House of Lords; and
- (b) none of whom shall be Ministers of the Crown.
§ (3) The members of the Committee shall be appointed by the Prime Minister after consultation with the Leader of the Opposition, within the meaning of the Ministerial and other Salaries Act 1975 (c. 27); and one of those members shall be so appointed as the chairman of the Committee.
§ (4) 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, on Report—on 18th April—we debated an amendment that is similar to Amendment No. 5. Those who are following the progress of the debate on prior scrutiny will find relevant references at cols. 1185–97 of the Official Report.
§ The amendment would establish the defence exports scrutiny committee—known as the DESC—which is modelled on the Intelligence and Security Committee, which was set up under the Intelligence Services Act 1994. The role of the committee would be to advise Ministers; it would not have the power to decide, as was unfortunately reported in an article by Andy McSmith in this morning's Daily Telegraph. Its role would be only to advise government.
§ I do not intend to rehearse all of the arguments. They were dealt with in Committee and are set out at cols. 864–74. In that debate, we dealt with the question of tenure of office, committee procedures, access to information, definitions of sensitive information, the staging of notification of licence applications, measures for the avoidance of delay, conflict of interest issues and the details of secondary legislation.
However, circumstances have changed; I shall explain how. First, an Early-Day Motion tabled in the other place states:
This House believes that specified defence export licence applications should be subject to prior scrutiny by a committee comprising honourable Members of Parliament".
It currently has the support of 310 elected Members of Parliament and in the next few weeks it will no doubt gain the support of a majority of the House of Commons.
Secondly, during a poll carried out by an organisation called Taylor Nelson Sofres, a sample of 1,023 adults were asked:
How much do you agree or disagree that … the Government should give MPs the power to advise it on arms sales to sensitive regions before the weapons are exported?".
§ Sixty-four per cent of the general public agreed and only 17 per cent disagreed.553
§ Thirdly, I understand that a national write-in campaign to Ministers is currently under way, organised by the lobby outside. Clearly there is a substantial amount of support both within and outside Parliament.
§ Following the many meetings that have taken place with Ministers over recent weeks since these matters were first raised during the Second Reading of the Bill, in my view only two issues remain outstanding. No doubt the Minister will deal with those this evening. One relates to the question of overlap with the Quadripartite Committee and the other relates to judicial review. I want to say a word or two about those.
§ On the question of overlap with the Quadripartite Committee, the final state of play—I use that term in the sense that these debates clearly take place all the time with the parties involved—is that the QSC will remain the only public face of accountability. We need to understand that the QSC is only a name given to describe the forum in which four Select Committees in the other place agree to meet jointly as against individually, thereby avoiding a duplication of effort. I refer to the Select Committees on Trade and Industry, International Development, Foreign Affairs and Defence.
§ Under the structure that we are setting out to establish this evening, the QSC would confine its remit to the assessment of the annual report on strategic exports and the issues of policy that flow from that. It is envisaged that it would meet three times a year in the period following publication of the annual report. The first session would be deliberative; the second would involve the examination of Ministers; and the third would deal with the approval of the QSC's report. That is hardly onerous for departments.
§ I mention that in relation to the activities of the QSC because it has been put to us that retaining the QSC in addition to the DESC may place too great an obligation and too much work on departments. That is clearly not the case, and I hope that my noble friend will be able to deal with that point this evening.
I turn to the question of judicial review. My noble friend on the Front Bench raised that issue with me during the most recent meeting that I had with him, and he and I both agreed that we would go away and do a little further homework. First, I want to refer my noble friend to the advice of Kate Cook of Matrix Chambers on these matters. I quote specifically from the paragraph in her report to outside lobbies which have taken an interest in these matters—in particular, Saferworld:
The Government's apparent concern that provision for Parliamentary scrutiny would constitute unlawful sub-delegation is, on analysis, misplaced because … there would be no sub-delegation of the decision-making function, since Parliament would have only an advisory role; and … even if there were any sub-delegation, it would be lawful because it would have been authorised by Act of Parliament".
§ Reminding my noble friend of arguments that he has used during the course of our private discussions, I quote that in order to point out that it might be possible to establish this structure outside primary 554 legislation. Indeed, I understand that it may be possible to do so simply by a decision of Ministers. It is being argued here that, by the use of primary legislation, we reinforce the privilege of the committee that has been created.
§ I now wish to refer my noble friend to the advice that I was given as a member of the ISC. Of course, the ISC, characterised by a structure similar to the one that I am advocating for the DESC, has clearly had to consider these precise matters. In response to a specific question, the advice that I was given in my role as a member of that committee was the advice given by the ISC to the Prime Minister, as would happen in this case, rather than to the public. Therefore, the committee is not responsible for any publication or any report laid before Parliament. The Prime Minister's position is protected by the Parliamentary Papers Act 1840, which extends absolute privilege to any paper ordered to be printed by either House.
§ So far as concerns defamation—I place these matters on the record tonight because this discussion may be ongoing—there must be a good argument. I was told that the advice of the committee was protected by absolute privilege. The advice given by the committee to the Prime Minister is analogous to the advice given by the Secretary of State for India to the Parliamentary Under-Secretary. I refer to the old case of Chatterton v. Secretary of State for India in Council 1895. Such advice involves communications between high officers of state on matters of public interest. Chatterton was referred to in the more recent Fayed case of 1998. If absolute privilege applied, then no action could be maintained, no matter how false or malicious the statement. I draw attention to that only because these matters will no doubt be considered by the department.
§ Finally, I refer back to the EDM. The Early-Day Motion in the other place is supported by almost half the Members of the House of Commons. It includes a large number of former Ministers of both this Government and a previous government. I understand that it includes the support of most of those who have, at one time or another, been chairmen of Select Committees of the House of Commons.
§ In so far as the House of Commons has almost spoken on the matter in the form of an EDM, I suggest to my noble friend that it might be wise to agree to this amendment this evening and then to test the opinion of the other place, particularly as this is only an enabling amendment. It does not set down in detail the rules that would apply to the operation of the DESC, as I set out in an amendment on Report. If it is an enabling amendment, nothing is lost. In the event that Ministers opposed what might have been carried on the nod by the Government tonight, the other place would be required to come to a decision.
§ I believe that I have made my case. I hope that my noble friend has listened intently to my argument because these issues will not go away. If we do not win 555 on the matter tonight, I understand that the Quadripartite Committee will persist in pressing the case in the future. I beg to move.
§ Lord Judd
My Lords, the whole House should be grateful to my noble friend Lord Campbell-Savours. He referred to the fact that the Early-Day Motion in the other place had attracted the signatures of a large number of Ministers. I hope that I am allowed to make a personal reference. My own experience, both as a Minister of State at the Foreign Office and as an Under-Secretary of State at the Ministry of Defence, albeit some time ago, leads me to see the importance and pertinence of this proposal.
It is far from self-evident why we can trust a committee of parliamentarians to scrutinise the intelligence services but cannot trust one to examine export licence applications. As my noble friend made clear, the cross-party Quadripartite Committee in the other place put forward a series of detailed proposals on how such a system could work. However, as he also made clear, so far the Government have objected to those, primarily on the grounds of constitutional impropriety, and on the grounds that the proposals would confuse the roles of Parliament and the Executive; damage commercial confidentiality; delay the licensing process and damage commercial competitiveness. The QSC has responded to those concerns comprehensively. Like many others, I can only come to the conclusion that the main obstacle is obviously a lack of political will.
The amendment provides an opportunity to show that that is not the case because the wording of the amendment tabled by my noble friend Lord Campbell-Savours could not be said to endanger any of the concerns I have just mentioned. It addresses the constitutional issues raised by the noble and learned Lord, Lord Scott, and the Government by taking the precedent established by the Intelligence and Security Committee and using it as a template. Although the defence export services committee as proposed would not go quite as far as the recommendations of the QSC—I favour the most transparent system possible—the amendment is at least an important step towards effective prior oversight by parliamentarians of arms export licence applications and, therefore, is surely to be welcomed.
As my noble friend Lord Campbell-Savours explained, it is essential to emphasise that it will he imperative to ensure that if the committee is established, it will work in parallel with the QSC and in no way as a substitute for it. The functions of the two committees will remain different and both roles are required. The defence export scrutiny committee will be a committee of parliamentarians which will provide advice to and raise concerns with the Prime Minister on specific licence applications before decisions are made.
The Quadripartite Select Committee will still perform the indispensable broader role of a full-blooded parliamentary committee in scrutinising government decisions; reviewing the annual reports of 556 strategic exports; taking evidence in public and making recommendations for changes in policy and law. The QSC is about parliamentary scrutiny. That key role will remain as important as it has obviously become.
§ Baroness Miller of Hendon
My Lords, in opposing the amendment I pay tribute to the noble Lord, Lord Campbell-Savours, for the energy and work which has gone into its drafting and into its much longer earlier form, and for his dogged persistence in pursuing the subject throughout the passage of the Bill.
However— I intend no disrespect to the noble Lord—I believe that the whole concept of the amendment is misconceived. No doubt the Minister will tell us when he replies how many hundreds of applications for export licences are received every year. It must be a pretty vast number judging by the high percentage that cannot be processed within the target time. There is an overwhelming volume of work for the large number of civil servants within the Department of Trade and Industry which cannot be adequately reviewed by a committee of nine. Perhaps when he replies the Minister can tell us how many staff in his department are engaged in that activity apart from staff at the Ministry of Defence, the Foreign and Commonwealth Office, the Department for Culture, Media and Sport and many other government departments which are involved in this licensing process.
There is then the problem of commercial and scientific confidentiality. It cannot be regarded as feasible that highly sensitive matters, such as those currently covered by export control, can be exposed to the scrutiny of a nominated Joint Committee of both Houses. Whether or not it is intended by the noble Lord—I am sure that it is not—the amendments could have the effect of introducing an element of political control early on; of imposing, perhaps, the political views of the members of the intended scrutiny committee on to the commercial and scientific applicants for licences, and the policy of the Government in granting or refusing them.
Such views have no place in the licensing procedure, in which the sole criterion of the Act and its 63 year-old predecessor is to guard against the "relevant consequences" set out in the schedule to the Bill: namely, as I remind your Lordships, to guard against adverse effects for the national security of the United Kingdom, its Armed Forces, and any other friendly state; adverse effects on peace, security and stability in any region of the world; the carrying out of acts facilitating production of weapons of mass destruction; and terrorism, crime and breaches of human rights.
In case noble Lords think that the idea that it could have some kind of political control is a fanciful fear, the noble Lord, Lord Campbell-Savours, mentioned today the Early-Day Motion, in which several senior government Back-Benchers are seeking to set up the committee, not merely to oversee the licensing of arms export systems in the vague way that the amendment proposes but to approve or disapprove in advance the 557 grant of all arms export licences. The sort of wedge of which the amendment could be the thin end is clear to see.
It would he intolerable to have a nine-person appointed committee of placemen which could take over the whole of the foreign policy and defence of this country, even in disregard of our international obligations. The Government are already subject to oversight under the normal parliamentary process.
The noble Lord, Lord Campbell-Savours said that the Minister stated on Report that he regarded the amendment as an enabling one. I do not think it is. It states that,(1) There shall be a Committee …(2) The Committee shall consist of …(3) The members of the Committee shall be appointed by the Prime Minister".and so forth. That does not make it an enabling clause.
The Minister pointed out in the last debate that if it was felt that an oversight committee was desirable, the Government could appoint one without the sanction of this legislation. I feel sure that if it were proved to be necessary, the Government would do so.
However well meaning the amendments may be—I am certain that the noble Lord, Lord Campbell-Savours, intends them to be—they are not practical, reasonable or even necessary. I imagine that they will continue to be opposed by the Government. Assuming that they are, I would find myself in the unusual position of supporting the Government. However, I am worried about saying that. As I said to the Minister in debates on the Employment Bill, whenever I supported an amendment tabled by one of his Back-Benchers, it was thrown out; and the ones that I opposed, the Minister accepted. Therefore, I do not know whether or not this is helpful.
I hope that the Minister will be able to persuade his noble friend to withdraw the amendment. The nature of the applications is so varied and the subjects so complex that I doubt whether nine polymaths could be found to qualify as the nine wise all-knowing persons that the noble Lord suggests the Prime Minister should appoint to the scrutiny committee, even with the benefit of consultation with the Leader of the Opposition.
§ Lord Rea
My Lords, I have a rather different view from that of the noble Baroness. I have listened to my noble friends Lord Campbell-Savours and Lord Judd and have been impressed by the logical and detailed arguments they have used in supporting the amendment; not only that: they have pointed out that since Report stage, public and political opinion has changed in favour of having this committee.
I very much look forward to the reply by the Minister, since the committee proposed by the amendment appears to be both necessary and desirable. I thought that my noble friend covered the arguments against it in detail. However, I shall cover two points raised by the noble Baroness. She mentioned the large number of applications for licences. It is not proposed that the nine members of 558 the committee will personally go through every single application. There will he a unit answering to it who will be given instructions to filter out those which look sensitive and need a decision by the committee.
With regard to the question of whether or not the committee will tread on sensitive toes and may infringe confidential matters, we have the example—as pointed out by my noble friend—of the Intelligence and Security Committee. Its members are sworn to secrecy and confidentially. There has been no case in which they have breached that trust.
§ 5.30 p.m.
§ Lord Redesdale
My Lords, we, on these Benches, support the aims of the amendment. It is highly unlikely that the Government will accept it at this late stage. However, I am sure that the issue will be raised on many occasions in another place, especially by the Quadripartite Committee. I think that it is an issue to which this House will return at some stage.
§ Lord Sainsbury of Turville
My Lords, the House will remember that at Report stage said to my noble friend Lord Campbell-Savours that the Government have given his proposal careful consideration. I added that that consideration had served to demonstrate both some possible attractions of his proposal, hut also some significant problems.
As I promised on Report, the Government have continued to examine my noble friend's proposal. Moreover, I have met with my noble friend and heard more about his proposal, how he envisaged it might work and how he considered potential problems might be overcome. My noble friend has sought to provide reassurance to the Government on a number of points. I am most grateful to him for the care he has taken to address the issues that I raised on Report and subsequently at our meeting.
However, the Government remain concerned about several aspects of the proposal. We remain concerned about how a defence exports scrutiny committee (DESC) would interrelate with the Quadripartite Committee in another place. I was glad to learn at our meeting that it is now common ground between us that the membership of the Quadripartite Committee and a DESC should not overlap. However, in spite of what my noble friend Lord Campbell-Savours has said today, the Government still remain concerned that the functions of the committees would overlap. As I said before, a DESC will almost certainly need and might well seek to take on major parts of what is now the role of the Quadripartite Committee. For example, a DESC would need to undertake a degree of retrospective scrutiny of both individual cases and strategic export licensing policy, if only to investigate and discuss why its advice was, or indeed was not, followed by the Government.
Moreover, in that context I point to subsection (1) of the proposed clause, where it states that a DESC will examine the licensing process in addition to examining licence applications. Examination of the licensing 559 process is currently a role of the Quadripartite Committee which it undertakes alongside its retrospective scrutiny function.
Leaving aside the merely practical problems which would be associated with a government being required to account for the same actions to two different committees, we have real concerns about the possibility that the two committees would give completely different advice to the Government on an identical issue.
I would not rule out the possibility that we may be able to resolve those concerns, but I detect in all the representations that the Government have received on this particular issue a similar degree of unease. Whenever we have received clear assurances that an individual or organisation believes that the two committees can work together without difficulty, those assurances have always been immediately followed by a stern assertion that the authors would totally oppose any diminution in the role of the Quadripartite Committee or in existing levels of transparency of the scrutiny process. That suggests to me that it would not be so easy to separate the different roles of the committees and that the creation of a defence exports scrutiny committee would indeed have real implications for the role of the Quadripartite Committee.
I add that the Government are also not as sanguine as my noble friend that the introduction of a DESC would not lead to increased delays and uncertainty in the export licensing process. I understand that the Defence Manufacturers Association has also expressed that concern. It has said that it is the "overwhelming view" of its members that the proposal for a DESC,would not be welcome, necessary or, in our view, workable in a way that did not increase delay and uncertainty in the licensing process".I turn to the point raised by the noble Baroness, Lady Miller. We issue about 12,000 standard individual export licences a year. In terms of the number of civil servants engaged in export control, I can speak only for my department and say that we have a little over 100 officials who undertake work on export controls and non-proliferation related work. We reckon, however, that not all those 12,000 individual export licences would need to be looked at. But on the basis that has been put forward, we believe that some 4,000 licences would need to be looked at.
When I said that the Government are concerned about delays and uncertainty in the licensing process, I do not just have narrow issues of official resources in mind. The proposal has been that the DESC should consider licence applications in parallel with ministerial consideration to avoid risks of delay. Yet that runs the risk that the committee will consider applications before all information on a particular case has been gathered. Thus the Government face an unenviable alternative. If the committee considers cases in parallel, it may be forced to give advice on the basis of insufficient information. That increases the risk that the committee's advice will conflict with the 560 Secretary of State's final decisions and thus increase legal uncertainty and delay while issues raised by the conflicting advice are resolved. If, however, the committee considers applications consecutively, once all the facts have been gathered, it is very difficult to see how that will not lead to the likelihood of delay.
I have outlined in some detail some of the Government's concerns to the House today as I was concerned to demonstrate that these issues are not straightforward. Any decision taken by the Government in this area could have profound implications for industry, for Parliament in general and the Quadripartite Committee in particular and for the good conduct of the export licensing process. While our continued examination of the proposal for a DESC since the Report stage has allayed some of our fears, new issues have come to light, such as the concern that the advice of the committee is most unlikely to remain private were a company or another interested party to seek its disclosure in judicial review. Perhaps I may say to my noble friend, Lord Campbell-Savours, that it is a question really of disclosure and not of sub-delegation that we were concerned with in the issue. Our concern is not illegal sub-delegation of power; it is that the advice of the committee is most unlikely to remain private were a company or another interested party to seek its disclosure in judicial review.
It has been put to me that this amendment would be only an enabling power. But I would say in response that passing primary legislation is an effective commitment to take action. I appreciate the spirit in which my noble friend has proposed an amendment which allows detailed arrangements to be made in due course, but I am afraid that the Government cannot agree that acceptance of this amendment would be anything other than a commitment to introducing the committee.
I also do not think that it is right that we should approve the amendment tonight. The Government do not think it right that the Bill should be amended at this time in this way. Our unwillingness to reach a hasty conclusion on this proposal is reinforced by the fact that, as we have said before, we are clear that the Government, were they 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. There is no need for primary legislation, so rushed consideration of these important issues is not only highly undesirable, it is clearly also unnecessary. Given the vital issues covered by the Bill, the Government do not want to see the Bill delayed still further. It is essential that we can start the process of consultation on the secondary legislation and thereafter implementation as soon as possible so that we can ensure the UK has the export controls it needs.
Therefore, for all those reasons, the Government consider that they are unable to support the amendment. However, I would like to assure my noble friend and others in this House and interested parties elsewhere that not amending the Bill does not in any way mean, as has been suggested to me, that the issue will consequently be left to moulder in the long grass. 561 Ministers intend examination of my noble friend's proposal to continue. It may prove possible to resolve all of our concerns. Moreover, the Government will also continue to work with the Quadripartite Committee to see whether we can take additional steps to achieve greater accountability and transparency in the export licensing process through greater cooperation with the committee. The Government are clear that the issue of how to improve the scrutiny of the export licensing process must be addressed, but we are not and cannot yet be convinced that the commitment to introduce a DESC represented by the amendment is the right or only way forward.
For all those reasons, and reminding my noble friend once again that primary legislation is not a prerequisite for the adoption of his proposal, I ask him to agree to withdraw his amendment.
§ Lord Campbell-Savours
My Lords, I thank my noble friend for his response. Perhaps I may say one or two words before I withdraw the amendment.
The House should ask itself a simple question: why does the system work in the United States of America? Why do a number of countries throughout the world operate prior scrutiny systems on their defence contracts which work, which are internationally recognised as working, and which are supported by their respective defence industries?
I listened to the comments of the noble Baroness, Lady Miller, with interest—especially her reference to what I suspect is an underlying suspicion of political processes and politicians' involvement in security matters. Throughout the late 1980s, I ran with the hounds in another place on the whole question of the Official Secrets Act and of abuses in which we believed government to be secretive. We rode the issue in the country; there may well be those outside or inside the House who would say that we exploited the issue. The reason that we could exploit it was that there was no structure in place to deal with the concerns of Members of Parliament. No sooner had the ISC been created than the debate effectively ended. Parliament was satisfied that while the committee was not a committee of Parliament—it was a committee of parliamentarians—at least a structure was in place to deal with the issues raised by Members of Parliament.
Defence contracts represent precisely the same case. There will be endless grandstanding in the House of Commons, exploitation of stories in the media, rumours and whatever, until we establish a structure capable of nipping the issue in the bud and dealing with the concerns of Members of Parliament. The moment that we create such a structure, we will find that much of the controversial public debate will disappear because Members of Parliament will know that there is a place to which they can go to raise their concerns—albeit in the confidential conditions inside the DESC, appointed as it would be by the Prime Minister and unable to report directly to the wider public or even to Parliament, because its reports would go to the Prime Minister and could be sidelined accordingly. There is no need for the suspicion 562 expressed by the noble Baroness, Lady Miller. The structure works and would defuse conflict within our parliamentary arrangements.
The noble Baroness and my noble friend referred to the issue of delays. We have dealt that issue before. As I witnessed in the ISC, if we sit a group of civil servants in a room with a bunch of politicians in conditions of confidentiality to discuss, debate and ultimately advise Ministers on particular matters—in this case, contracts that they have scrutinised—that committee will develop a culture of understanding whereby, over time, the number of cases referred to it will reduce. That is the inevitable consequence of the meeting of minds inside that forum, based as it is on confidentiality.
It is that meeting of minds between politicians of all political persuasions and civil servants that is essential if the debate on who is allowed to export what is to be influenced. The committee will make no decisions; it will only issue advice to help in the process of developing policy on particular countries. My guess is that, ultimately, when the structure is set up, as I expect that it will in the end, we will be surprised by how few cases have to go before the committee.
Finally, on the question of confidentiality, the ISC never leaked. The DESC would never leak. The party of the noble Baroness, Lady Miller, will at some stage have influence on these matters in future. She should trust politicians in those conditions to be prepared to safeguard the interests of the state. There would he no abuse. My noble friend accepts that. I understand that confidentiality was not a matter that troubled Ministers, in the end, because they have learned from the operation of the ISC.
I regret what has happened tonight. The debate will continue. I thank all the Ministers who have listened to the debate as it has developed. As I told my noble friend, the Quadripartite Committee will take the matter forward. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 5.45 p.m.
§ In the schedule:
§ Lord Sainsbury of Turville
moved Amendment No. 6:Page 11, line 28, leave out second "equipment" and insert "goodsThe noble Lord said: My Lords, the House will remember that on Report the Government amended paragraph 1 of the schedule to ensure that it was as comprehensive as possible. Those changes included replacing a reference to the term "equipment" in paragraph 1(1)(c) with the more appropriate term "goods", which is used throughout the Bill. That change now requires a consequential amendment to be made to line 28 to ensure that when the section cross-refers to paragraph 1(1)(c), it refers to the new text, "goods", rather than the old text, "equipment". I hope that the House will agree that that minor amendment should be made and I invite the House to support it.
On Question, amendment agreed to.
§ Lord Sainsbury of Turville
My Lords, I beg to move that this Bill do now pass.
Moved, that the Bill do now pass.— (Lord Sainsbury of Turville.)
On Question, Bill passed, and returned to the Commons with amendments.