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Baroness Anelay of St Johns: My Lords, I am grateful to the noble Baroness for not only dealing with the orders but for expanding on them further than was possible yesterday in another place. I am grateful to her for answering fully the questions of which I gave her advance notice.
I notice that the noble Baroness took the orders in a different order from that on the Order Paper; I shall follow her lead. I understand why she did so; the order of printing has varied overnight from that which we anticipated.
The noble Baroness dealt first with the designation of Part 1 territories where the countries so listed will be able to implement the European arrest warrant. As she knows, that is a controversial matter in our eyes because we were concerned about which countries would be ready to be up and running with what we consider to be an unacceptable procedure in itself. I note that she was diplomatic in her reference to those of our current EU partners that will not be able to be on the list now, but which the Government hope will join the club later.
It must be disappointing for the Government that those EU partners have not all been able to comply. I note that the noble Baroness gave some possible start dates: the end of January for France and the Netherlands; for Austria, Germany, Greece and Luxembourg, 1st April; for Italy the Government are aiming at 1st April, but that, she says, remains to be seen. That is disappointing for the EU when the presidency has been in Italy's hands for the past few months. Of course, my underlying feeling must be that if those countries are going to get systems right, it is
better to wait for that to ensure that they operate correctly what can be the draconian procedure of the European arrest warrant.The noble Baroness was generous in her response to my questions on the next order, which brings into effect the code of practice. When we debated the Bill in Grand Committee and at Report, I had been concerned about possible ambiguity, especially about whether there was a distinction between investigation of the extradition offence and obtaining evidence for the prosecution of the extradition offence. I am grateful to her for pointing out where amendments have been made to that and how. Having read the draft code of practice, I agree that the redrafting is indeed much more acceptable than the original.
I am also grateful to her for explaining which other parts of the codes have been redrafted. I shall not refer to those, because I welcome the redrafts and consider them perfectly proper. My only final remark concerns Part 3 designation, which designates those people who will be able to apply for a Part 3 warrant. We accept that the list is appropriate and we support that order.
Lord Goodhart: My Lords, I am happy to support these three orders. I entirely understand why only seven states are designated under Part 1. The Government have gone the right way about dealing with that. Perhaps I should add that I am sorry that they did not use the same procedure for the United States and defer that order until the treaty had been ratified by the American Senate.
We also have no objection to the designation under Part 3. We are glad that the Government have taken into account the various representations made about the draft code of practice. It has undoubtedly been improved as a result.
I should like to raise one point. When scanning through the code, I came across one paragraph that leaves me completely befogged. I do not suppose that the noble Baroness will be able to provide an immediate answer, but perhaps she could write to me about it, because it is extremely difficult to understand. Paragraph 2.6 of code B states:
- "This Code does not apply to the exercise of a statutory power to enter premises or to inspect goods, equipment or procedures if the exercise of that power is not dependent on the existence of grounds for suspecting that an offence may have been committed and the person exercising the power has no reasonable grounds for such suspicion".
Baroness Carnegy of Lour: My Lords, from the order itself, noble Lords who have not followed closely the passage of the Bill will probably not realise that the order does not apply to Scotland. In Committee and at Report, we discussed that matter in detail. The Government, with the support of the Lord Advocate in Scotland, were of the view that, although it is a Westminster, United Kingdom Bill—a Great Britain Bill—it was not appropriate for the Westminster Parliament to require the Crown Office in Scotland to produce a code of practice.
I do not think that the noble Baroness takes the matter as seriously as I do. Having heard her full fleshing out of the contents of the codes of practice, I am anxious that the Scots police, who will be performing precisely the same task as police south of the Border, have the support of a proper code to guide them. The people of Scotland deserve that.
Has the Lord Advocate decided to issue a code of practice? If the noble Baroness does not know, perhaps she could find out and let me know, because this is a Westminster responsibility under a Westminster Act. We should be sure that the people of Scotland are protected in the same way from wrongful action by the police.
Baroness Scotland of Asthal: My Lords, first, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, for their fulsome support for these orders. I am tempted to give the noble Lord, Lord Goodhart, a full explanation, but he may be teasing me. He will know that paragraph 2.6 has been drawn precisely from the equivalent passage in the main PACE codes. Notwithstanding that, it will be my privilege and pleasure to give him a full written response, so that noble Lords need not be detained overlong with the matter.
I am in a less comfortable position with the noble Baroness, Lady Carnegy. I do not know whether the Lord Advocate has yet made a decision about the code of practice; I shall certainly inquire. I hope that the noble Baroness has noticed that the Procurator Fiscal has been included in the code as one person who can make appropriate orders. I will certainly write to the noble Baroness about the matter.
On Question, Motion agreed to.
Extradition Act 2003 (Part 3 Designation) Order 2003
4.28 p.m.
Baroness Scotland of Asthal: My Lords, I have already spoken to the order. I beg to move.
Moved, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Extradition Act 2003 (Designation of Part 1 Territories) Order 2003
Baroness Scotland of Asthal: My Lords, I beg to move.
Moved, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003
4.30 p.m.
Baroness Miller of Hendon rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 31st October, be annulled (S.I. 2003/2764).
The noble Baroness said: My Lords, my reasons for taking the unusual step of praying against this order were constitutional objections to it and serious reservations by the academic and scientific communities. Although there has been some consultation with the representatives of Universities UK, the Royal Society and the Foundation for Information and Policy Research, culminating in a meeting with officials at the DTI and the Foreign and Commonwealth Office on 25th November, the outcome of that meeting was not completely satisfactory. The academic representatives sought clarification on certain points, assurances and, more particularly, guidance on how the new rules should be interpreted and applied. However, the officials could give no absolute commitment without reference to the Minister.
I am informed that, as late as last Friday afternoon, the Minister did not wish to indicate to me in writing how he would deal with those points raised with his officials. I thought that the Minister might like to know that, as a result, I spent the whole weekend in consultation with my advisers and in discussions with the academic community and their advisers and Members of different sides of your Lordships' House, to say nothing of writing a 2,500-word speech in support of my Prayer. All that could have been avoided had the Minister found it possible to be a little more forthcoming earlier.
As it is, I received a message from the Minister's office yesterday at 3.15 p.m. that he wished to speak to me. He kindly faxed to me a draft of his speech at 6.11 p.m. yesterday whereupon another round of consultation and late-night speech-writing had to take place. However, I am most grateful to the Minister for letting me know in advance, however belatedly, his explanation of the order and the extent to which he believes that he is already meeting, and will meet in future, the serious concerns of academia. I owe it to noble Lords to explain what those concerns are because to some extent they have not been entirely met, and because of my own constitutional point, which I shall leave until the end.
In view of the explanations and assurances that the Minister tells me he is about to give noble Lords, I can be briefer than I would otherwise have been. In summary, academia's reservations are: first, that the new end-use controls that the order introduces are ambiguously drafted and, as a result, unreasonable in their extent; and, secondly, that the controls on dual-use technology in intangible form, which has been in use since 2000, and which the order re-states and re-enacts, are at serious risk of proving unworkable.
Identical ambiguities are found in Regulations 8, 9 and 10, but for simplicity's sake and to save time I shall refer only to Regulation 8.Regulation 8 imposes a prohibition on the transfer of technology if each of two conditions is satisfied. The first is that the transferor is aware that the technology is intended for weapons of mass destruction programmes. What is not clear is who must hold that intention. Obviously, the condition is fulfilled if the transferor or the transferee holds the intention. But what if the intention is held only by third parties? Sadly, many governments seek to establish such weapons systems. Who is to delve into the motivation of such a foreign government who sponsors a student to study particular subjects in the United Kingdom, including, say, biology or chemistry? The regulation should require that the intention is that of the transferee of the technology or of some other person to whom the transferor is aware that the technology is likely to be transferred. When I refer to the transferor being "aware", I mean positively aware, not that he ought to be aware.
The second condition to make the prohibition effective is that the transferor has reason to believe that the technology may be used outside the United Kingdom. It is hard to think of a single case where the transferor could be sure that it was impossible for the technology to be used outside the EU. On the contrary, with the Prime Minister boasting as he did recently that Britain was becoming the destination of choice for international postgraduate students, it is inevitable that dual-use technology will be exported.
In my submission, prohibitions that apply unsatisfactory and ambiguous conditions and obligations, as contained in the proposed order, are unreasonable. As such, they will or may face rejection by the courts as ultra vires the powers of the Act. In the mean time, the academic community fears that the vagueness and ambiguity of the controls would have major adverse effects on them. First, they fear that the controls would severely inhibit the normal exchange of information between academics working in the same field. Next, they were worried that they would impose intolerable obligations on universities on accepting foreign students. Last but by no means least, they believe that they will inflict on academics and their publishers injurious uncertainty about the risks of prosecution or the need for a licence.
Having just discussed the new end-use controls, I shall now deal with the consolidation of the existing dual-use controls that have been in operation since 2000. The new consolidating regulation gives us the opportunity to revisit the actual contents of the previous order in the light of more than three years' experience of their operation. The existing regulations extend control from the export of goods and equipment to transfers of technology in intangible form. That has an immense prospective effect on many fields of scientific research involving international collaboration. The extensive scope of the controls is ameliorated by many open licences, but those licences are available only to those who comply with their general conditions. Those conditions require
notification to the DTI and the keeping of extensive and detailed records of transfers of technology, however ephemeral the form of the transfer and however trivial the content. I believe that very few academics have made such notifications.There is very widespread ignorance in the academic community of the stringent requirements of the available licensing schemes and the need to obtain their benefit. Unless the volume of international electronic mail passing through academic parts of the Internet and via text messaging has diminished since 2000—that is highly improbable—it seems likely that there is widespread contravention of the controls imposed in 2000.
The impact of export controls on the academic world is vastly different from that on the worlds of commerce and industry, which transfer technology and goods for money. Every item sold leaves a paper trail open to inspection and investigation in the form of invoice. By contrast, the academic world is dedicated to enlarging the stock of information, including technology available to everyone. The only trail of it is to be found in published papers and books or on the hard drives of computers. If, as I assume they do, the Government wish to see compliance with necessary controls—by necessary, I mean those that do not impose a shotgun approach—the DTI must devote substantial intellectual resources to developing constructive guidance, which must be tailored to the practical needs of the academic world. That is essential.
I have just mentioned the bureaucratic requirements of record-keeping. A particular problem affects information security projects, including, for example, the protection of bank customers' PIN numbers or prevention of computer fraud, hacking and spamming. Those are covered by the dual-use controls, and such projects come within the licensing regime, because they come under an EU instrument called the Community General Export Authorisation (CGEA). The problem is that, to take advantage of that licence, academics must comply with record-keeping obligations to be imposed by the order that are both onerous and impractical. They are set out in Part II of Schedule 4 of the order. I believe that the Government will claim that that mirrors what is set out in the CGEA itself.
In a modern information security project, very large numbers of exchanges of technology may take place by e-mail. That often consists of computer software that may never form part of the final product but is required for testing or design purposes. If a record under the CGEA must be entered for each e-mail and reply, the burden of record creation would make most projects unfeasible. In fact, article 6 of the EU dual-use regulation licenses most dual-use items, including information security, although it does not do so if it includes what are called cryptanalytic functions.
The conditions of the EC regulation do not contain anything resembling the burdensome ones set out in Part II of Schedule 4 to this order. This is despite the fact that the EC order specifically says that it is up to
individual states to decide what registration and reporting requirements to apply. In other words—and not for the first time—the Government are guilty of gold-plating EC regulations. In this case, the Government are not under the constraints that I understand the Minister may claim they are.I seek from the Minister a cast-iron assurance that ways will be found—either through detailed guidance on record-keeping requirements, or through the grant of open licences, or through the grant of individual licences containing more practical and less onerous conditions, or a combination of all three—to ensure that information security projects are not burdened in this most unreasonable way.
Before I make my concluding remarks I should like to add something else to my wish list at the request of Universities UK. The existing controls have been in force for three years. These should be reviewed in 12 months from now, when they will have been in place for four years and the new ones, if the order is passed, for one year. I understand that the Minister will confirm a review of the legislation after the controls have been in force for three years. I ask him to confirm that when that review takes place it will actively seek and take into account the views of the academic community.
Furthermore, as the delegation explained to the officials, there is a need for clear and adequate guidance, preferably tailored for academics, explaining what the regulations require within the boundaries of Section 8 of the Export Control Act. The representatives of Universities UK and the Royal Society have offered total co-operation with the Government in helping to draft the necessary guidance as well as in disseminating it to the academic community in exchange for clear statements from the Minister about the possible interpretation of Articles 8 and 9 of the order, which deal with the electronic and non-electronic transfer of information and general licences for certain academics in place of the Community general export authorisation. I hope to hear from the Minister that he will accept that offer.
Finally, I come to my third reason for objecting to the order, to which I shall refer in the fewest words possible. The simple fact is that because of the unnecessarily wide scope and impractical requirements of the order it is, according to the advice I have received, ultra vires the Secretary of State's powers as it contravenes the clear wording of Section 8 of the Export Control Act 2002—I ask the Minister to note this—which states:
- "The Secretary of State may not make a control order which has the effect of prohibiting or regulating . . . the communication of information in the ordinary course of scientific research".
This provision is intended to deal with dual-use information used, for example, during legitimate academic presentation or research, but which has a potential strategic use. It may be that the clarification the Minister will give your Lordships, and the guidance that he may give on the operation of the
order, will avoid any law suit in the future that may wish to test this point. For the moment, therefore, I beg to move.Moved, That an humble Address be presented to Her Majesty praying that the order laid before the House on 31st October be annulled (S.I. 2003/2764).—(Baroness Miller of Hendon.)
4.45 p.m.
Baroness Sharp of Guildford: My Lords, we on these Benches share many of the reservations spelt out by the noble Baroness, Lady Miller, about the order as it stands. Some of these reservations are shared by Universities UK and the Royal Society.
We feel that there is considerable ambiguity in the wording of Articles 8, 9 and 10. In particular we have concerns about the dual-use controls in Article 13 and the detail set out in Part II of Schedule 4. I did not spend the weekend trying to write a speech but I did spend it trying to read the order. I have to confess that I am not very much wiser as a result. The detail is considerable.
We are worried about the degree to which it is implied that the detail necessary under Part II of Schedule 4 arises as a result of the Community general export authorisation. I am given to understand that that authorisation does not require the detailed record keeping imposed under Schedule 4. We understand that it is for individual countries to specify precisely what they require under the authorisation. In this case, it is our own authorities which require the level of detail specified. Once again we are gold-plating European regulations to the detriment of our own people. The order imposes unnecessary burdens on them which they should not have to bear.
That said, thanks to the noble Baroness, Lady Miller, I have had the benefit of seeing a draft of the Minister's speech. I believe that I am right in saying that many of our reservations will be allayed as a result of his speech. I look forward to hearing it.
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