Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateMonday 3rd July 2023
(1 year, 5 months ago)
Commons ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate
21:38 - The House divided: - Ayes: 212 / Noes: 272 - Question accordingly negatived.
21:53 - The House divided: - Ayes: 268 / Noes: 70 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Secretary of State for Levelling Up, Housing and Communities (Michael Gove)
I beg to move, That the Bill be now read a Second time.
I hope the House will allow me first to pay tribute to Lord Kerslake, who, as the House will know, died over the weekend after a short illness. Bob Kerslake was a true public servant, steeped throughout his professional life in local and central Government, and wholly dedicated throughout his career to improving the lives of citizens. He began his career with Greater London Council and went on to run, with distinction, Sheffield City Council—the fourth largest in England—before making the switch to the corridors of Whitehall. He was the first chief executive of the Homes and Communities Agency, the forerunner to Homes England, a vital arm of Government in making sure that affordable housing is available to all. He was deservedly promoted to become permanent secretary to the Department for Communities and Local Government and, later, head of the home civil service, where he served with great distinction and kindness. Speaking personally as a Minister in the Governments where he served, I was deeply grateful to Bob for his dedication, his generosity of spirit and his wise advice.
After leaving Government, Bob led the inquiry into the 2017 Manchester Arena bombing. More recently, he chaired the UK2070 Commission on regional inequalities. My colleagues and I greatly valued his work on homelessness with the Kerslake commission, and I think we all agree that his energy, knowledge and wisdom will be greatly missed. I know that right hon. and hon. Members across the House will wish to join me in sending our deepest condolences to his family in their grief. [Hon. Members: “Hear, hear.”] I thank you, Mr Speaker, and colleagues across the House.
The Bill does four things: it honours a manifesto promise to which this Government recommitted in the last Queen’s Speech; it affirms the important principle that UK foreign policy is a matter for the UK Government; it ensures that local authorities concentrate on serving their residents, not directing resources inefficiently; and, critically, it provides protection for minority communities, especially the Jewish community, against campaigns that harm community cohesion and fuel antisemitism.
In our 2019 manifesto, this Government committed to
“ban public bodies from imposing their own direct or indirect boycotts, disinvestment or sanctions campaigns against foreign countries.”
The Bill does just that—no more and no less.
Sir Desmond Swayne (New Forest West) (Con)
I think it does a fifth thing, which is to introduce a thought crime. Were I to be a leader of a local authority opposed to the provisions of this Bill, once it became an Act, if I continued to say that I disagreed with its provisions and what I might wish to have done with the powers I retained were those provisions not to have been made law, I would be breaking the law. That cannot be right in a free society, can it?
Michael Gove
It would not be right if the Bill restricted local authorities from adopting policies that they considered to be in line with Government policy. It is also the case that it would be problematic if we were to restrict freedom of speech in any way, but the Bill does not do that.
Several hon. Members rose—
Michael Gove
Not at this point—I will in a second.
It is important to stress what the Bill does not do. It does not restrict local authorities adopting policies in line with formal, agreed Government sanctions, embargoes and restrictions. It does not impede local authorities considering legitimate commercial factors related to business with a foreign state, and exercising due diligence in the award of contracts. And it does not prevent a local authority from exercising due diligence when considering whether a supplier or investment target might be involved in environmental misconduct, bribery, competition law infringements or labour misconduct, including human trafficking and modern slavery. In no way does the Bill circumscribe anyone’s right to freedom of speech or conscience.
What the Bill does do is prevent local authorities from singling out individual nations for discriminatory treatment on the basis of an ideological opposition to that nation and its fundamental basis. Action is required here because there is an existing, organised and malign campaign that aims to target and delegitimise the world’s only Jewish state. That campaign seeks to persuade public bodies to make commercial decisions solely on the basis of harming that state and its people.
Stephen Crabb (Preseli Pembrokeshire) (Con)
I am grateful to my right hon. Friend for giving way so soon in this debate.
Is not the reason every single Conservative Member stood on a manifesto commitment to bring forward such legislation that we understand that there is something fundamentally illiberal, leftist and with deep, ugly connections to antisemitism at the heart of the boycott, divestment and sanctions movement? That is what we are trying to tackle today.
Michael Gove
My right hon. Friend is absolutely right. I shall go on to say more about the nature of the BDS campaign because we are not talking in the abstract; we are talking in concrete terms about a campaign that exists, and has been in operation now for nearly 20 years, based on a premise that seeks to delegitimise the state of Israel. The campaign also leads directly, as I shall point out, to antisemitic incidents and a loss of community cohesion.
Joanna Cherry (Edinburgh South West) (SNP)
I just remind the Secretary of State that the Bill goes way beyond the activities of the state of Israel and will apply potentially to other areas of foreign policy, too. Has he considered whether the interaction of clause 1(7) and clause 4 will disproportionately interfere with the freedom of expression, and of conscience and belief, of individuals who are making, or have a stake in, the procurement and investment decisions of public bodies? My view and that of many other lawyers who have looked at the Bill is that it will. Why has he not produced a human rights memorandum analysing the extent to which the Bill interferes with rights under article 10 and article 9, on freedom of belief, of the European convention on human rights, and article 19 of the international covenant on civil and political rights? Will he do so?
Michael Gove
Absolutely. Nothing in the Bill conflicts with any aspect of the ECHR, not least article 10.
Sir Simon Clarke (Middlesbrough South and East Cleveland) (Con)
I welcome the fact that my right hon. Friend is bringing this legislation to the House today. He rightly mentioned the unsavoury connotations of much of the criticism that the Bill is facing, particularly in connection with the BDS movement. On that point, could he clarify his thoughts on Richard Hermer KC, who has provided advice to the shadow Front-Bench team on this legislation? Mr Hermer has previously authored a chapter in a book called “Corporate complicity in Israel’s occupation: evidence from the London session of the Russell Tribunal on Palestine”, which is edited by some extremely interesting people—I fear that they are interesting in the most negative sense. Is this really the calibre of individual who should be advising the official Opposition?
Michael Gove
My right hon. Friend raises an important question because the Opposition have tabled a reasoned amendment. I believe they have done so in good faith. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) pointed out, some lawyers take a different view from the Government. One of those lawyers was commissioned by the Labour party to produce a legal opinion, but the gentleman concerned, a distinguished KC, has a record in this area—a record of political commitments that everyone can see clearly predispose him towards a political and particular view on this question.
Michael Gove
No. I am merely pointing out what is in the public domain. Let us turn to the nature of the BDS campaign.
Tim Loughton (East Worthing and Shoreham) (Con)
Will my right hon. Friend give way?
Michael Gove
Not at this point. The BDS movement deliberately asks public bodies to treat Israel differently from any other nation on the globe. It asks them to treat the middle east’s only democracy as a pariah state and to end links with those who have a commercial presence there. Let me be clear: there are legitimate reasons to criticise the Israeli Government, to question their policy and, if individuals so wish, to repudiate their leadership, as there are with many other countries.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Will the right hon. Gentleman give way?
Michael Gove
No. Nothing in the Bill prevents or impedes the loudest of criticisms of Israel’s Government and leaders, including by elected politicians at all levels of government.
Alicia Kearns (Rutland and Melton) (Con)
Will my right hon. Friend give way on that point?
Michael Gove
No. But the BDS movement asks that, alone among nations, Israel be treated as illegitimate in itself—
Michael Gove
No. The founder of the BDS movement, Omar Barghouti, has been clear in his opposition to the existence of Israel as a Jewish state. He has attacked what he calls the “racist principles of Zionism”—that is, the fundamental right of the Jewish people to self-determination. The man who founded and is in charge of the BDS movement has argued that Zionist principles
“maintain Israel’s character as a colonial, ethnocentric, apartheid state.”
On that basis, he opposes any idea of a two-state solution—a secure Israel alongside a viable and democratic Palestine. Instead, the BDS movement’s leader wants a
“one-state solution…where, by definition, Jews will be a minority.”
It is entirely open to any individual to agree with that proposition, but it is no part of this Government’s determination or intent to give any heart or succour to a movement that argues that the two-state solution is wrong and that Jews should be a minority in one state.
Crispin Blunt (Reigate) (Con)
Can my right hon. Friend help us here? As the effect of Israeli policy since 1967 has been to build out of existence the possibility of a two-state solution by settling 700,000 Jews who have arrived in the state of Israel, with their right to go there under Israeli law, it is now no longer possible for there to be a two-state solution, so what is British policy to be?
Michael Gove
British policy is, as my hon. Friend knows, to promote a two-state solution. I know that he has a long, passionate and committed interest in this subject and I respect the compassion and knowledge that he brings to the debate but, respectfully, I disagree with him. I believe that a two-state solution is the right approach, which the BDS movement does not believe.
Jim Shannon (Strangford) (DUP)
I very much welcome the legislation that the Secretary of State is introducing, and we as a party will support it when the time comes tonight. There are many examples in Northern Ireland of councils having overstepped the mark by boycotting goods from Israel and penalising and focusing attention on the small Jewish community. Local authorities should be working hard to support diversity and good relations, not ridiculing and condemning our small and minority communities. It is clear to me that the point of the legislation is to make sure that that does not happen, so let us make sure that it goes through tonight.
Michael Gove
I agree, as I do almost always, with every word that the hon. Gentleman said.
Several hon. Members rose—
Michael Gove
I will take interventions in due course, but I want to make a little progress first.
I want to be clear about what the BDS movement is and what it does. The BDS movement is not, in its origins or operation, a campaign that is designed to change Israel’s Government or shift Israel’s policy. It is designed to erase Israel’s identity as a home for the Jewish people. Again, the founders of the BDS campaign have been clear, saying:
“A Jewish state in Palestine in any shape or form cannot but contravene the basic rights of the…Palestinian population and…ought to be opposed categorically”.
Alongside those who lead the BDS movement on the BDS national committee sit members of the Council of National and Islamic Forces in Palestine, a coalition of Hamas, Palestinian Islamic Jihad and the Popular Front for the Liberation of Palestine—all militant organisations that are proscribed by this Government.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
Will the Secretary of State give way?
Michael Gove
I will give way in due course, but not at this point.
The effects of the campaign are sadly manifold. The BDS campaign opposes efforts to bring Israelis and Palestinians together to broker peace through a two-state solution, opposes cultural exchanges between Israelis and Palestinians, and fights against co-operation between Israeli and Palestinian universities. BDS has specifically denounced an organisation called OneVoice, which is a joint Palestinian-Israeli youth organisation that campaigns to end the occupation, campaigns against settlements and campaigns for the establishment of a Palestinian state. Because OneVoice does not use the rhetoric of apartheid that BDS deploys, and because it does believe that there should be a Jewish state, it is denounced by the BDS movement.
Several hon. Members rose—
Michael Gove
I will make more progress and then give way.
Where the BDS campaign has been adopted and endorsed there have, unfortunately, been real community-cohesion problems. We have seen an increase in antisemitic events following on from the activities of the BDS movement, including supermarkets removing kosher products from their shelves following specific protests. The Community Security Trust has recently recorded the highest ever number of antisemitic incidents.
In evidence adduced before the Supreme Court in 2020, the following point was made. The evidence said that
“although anti-Israel and pro-Palestinian campaigning in itself is”,
obviously,
“not anti-Semitic, there is a pattern of anti-Semitic behaviour in connection with campaigns promoting a boycott of Israel. For example, protests outside an Israeli-owned shop in central Manchester in summer 2014 led to some Jewish people using the shop being racially abused by protestors, including shoppers”—
I hope the House will forgive me—
“being called ‘Child killer’, comments such as ‘You Jews are scum and the whole world hates you’, and Nazi salutes being made at Jewish shoppers using the Israeli-owned store. On social media, hashtags such as #BDS, #BoycottIsrael and #FreePalestine are regularly used by people posting anti-Semitic tweets and comments.”
That is why Labour Friends of Israel has rightly stated:
“BDS damages communal relations and fosters antisemitism at home, while doing nothing to further the cause of peace and reconciliation between Israelis and Palestinians. Public bodies should not be singling out the world’s only Jewish state for boycotts.”
Luke Akehurst, a Labour NEC member speaking in a personal capacity, has also argued that we should
“welcome the Government’s proposed bill to end the ability of public sector bodies to carry out boycotts and divestment.”
Mr Akehurst added that he was against BDS more widely
“because it deepens the divisions in the Middle East conflict rather than encouraging dialogue and coexistence between Israelis and Palestinians. BDS demonises and delegitimises Israel”.
I agree with Labour Friends of Israel, I agree with Luke Akehurst, I agree with the Board of Deputies, and I agree with the Jewish Leadership Council, all of whom back this Bill. I agree with the French and German Governments who have taken action against the BDS movement, and I agree with all 50 Governors of US states—Democrat and Republican—who have denounced the BDS movement. The question for every Member of this House is whether they stand with us against antisemitism or not.
Alicia Kearns
I thank my right hon. Friend for giving way. Although I disagree fundamentally with the point that he has just tried to make, my question to him is this: has a single diplomatic post specifically advised that the Bill contravenes our UN Security Council requirements and resolutions?
Alicia Kearns
Has any diplomatic post specifically advised the Government that what is being proposed this evening in the Bill contravenes our UN Security Council resolutions?
Mr Dhesi
This ill-drafted Bill has multiple contradictions, as excellent legal advice has highlighted, and it may actually contravene international law. Although the Secretary of State may be happy that he will have these additional powers, the Bill will no doubt be subject to multiple legal challenges, and therefore a lot of taxpayers’ money will once again be wasted by the Government. Does he concede that well beyond BDS and the middle east, the Bill may hamper the UK’s ability to protect and preserve human rights across the world?
Michael Gove
No, I absolutely do not. The Bill enhances the UK Government’s ability to protect human rights across the globe. On the point that the hon. Gentleman makes about legal challenge, it is the case that organisations such as the Palestine Solidarity Campaign and others have challenged the Government in this area in the past. They may do so again, but I am confident that the Bill is legally watertight. On the point—
Michael Gove
No, I am answering the hon. Gentleman’s question first.
On the point about the legal advice from Mr Hermer KC, as I have said, we believe that that legal advice is flawed and it comes from someone who has a clear political record of partiality on this question.
Stella Creasy (Walthamstow) (Lab/Co-op)
I thank the Secretary of State for giving way. I hope he will recognise that many of us in this House have stood up to the BDS movement. Therefore, his rather intemperate suggestion that only if we support this legislation are we against antisemitism does not pass muster. Does he recognise that those of us who would like to see local authorities challenged—perhaps through the Equality Act 2010—can find troublesome elements in this Bill? It is almost as if his myopia about the BDS movement has blinded him to the consequences of this and what it could do.
The Secretary of State boasted earlier that there were exemptions around labour rights and environmental laws, but is it not ironic that the Bill does not include an exemption around genocide? Those of us who have communities that are desperately concerned about the Uyghurs, the Rohingyas or what happened in Sri Lanka recognise that this legislation could stop our speaking out for them. Will he work with us—those of us who want to tackle antisemitism and to stand up for human rights—and rethink his proposals?
Michael Gove
I have a lot of respect for the hon. Lady and I acknowledge her work to fight antisemitism and stand against the BDS movement—more than acknowledge it, I applaud her for it. I would say three things. First, there is absolutely nothing in the Bill that prevents the UK Government or other public bodies from taking appropriate action against Myanmar, against China over the treatment of the Uyghurs or against Russia and Belarus over their aggression towards Ukraine. I have seen no solid legal advice to suggest that is the case at all.
Secondly, if the hon. Lady or anybody else wants to table amendments in Committee that can improve the Bill, I am completely open to them. I have not yet seen any such amendments, but I know she and others in this House are skilled in drafting legislation, and I look forward to seeing the appropriate amendments. However, as we have seen in the past, attempts to deal with the specific menace that the BDS campaign creates through guidance have not been sufficient. Primary legislation is required. The shape of that legislation I hope we can decide together across the House.
Dr Whitford
The Secretary of State mentioned that it is the UK’s long-standing policy to support a two-state solution. It is also the UK’s long-standing policy to differentiate between Israel and the occupied territories. The UK endorsed United Nations resolution 2334. Why is there no differentiation in the Bill between Israel and the occupied territories? Does that not increase the risk of antisemitism?
Michael Gove
No; they are separated in the Bill. I am afraid the hon. Lady is wrong.
Sir Robert Buckland (South Swindon) (Con)
My right hon. Friend is being very generous in listening to the rather strong opinions on the Bill, but can I press him again to consider alternative ways to deal with the threat of BDS without offering the glass jaw that I see clause 3(7) as presenting to parliamentarians, and to work with me and others to find a better way to do this? I will also say that ad hominem attacks on independent counsel, whoever they are, are not advisable and not wise.
Michael Gove
I am grateful to my right hon. and learned Friend. Of course we are completely open to the consideration of any amendments that can give better effect to the shared intentions that we have across the House to deal with this movement. However, Israel is there in the Bill because of the clear nature and the clear and present activities of the BDS campaign. Were there to be an alternative, one would have to make sure that it dealt effectively with that area.
Sir Brandon Lewis (Great Yarmouth) (Con)
Like my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), I thank my right hon. Friend the Secretary of State for the generosity he is showing in giving way. I support what he says about the importance of setting a clear marker on the menace of the BDS movement and its impact across communities. Does he agree that the Bill potentially goes further, in a positive way, by making the point that it is for local government to spend taxpayers’ money on services and other issues for their constituents in the best available way, not using it—or abusing it—on ideological issues, and that, whether in expenditure for the local community or through local government pension scheme investments, it should be aimed at getting the best return for constituents and beneficiaries, not at driving ideological wedges between communities?
Michael Gove
I think my right hon. Friend is completely right. Local government has a critical role in delivering public services, including support for the most vulnerable in our communities. It is vital that central Government support it in that endeavour and that local government should not be diverted from its core purpose by other temptations.
Richard Graham (Gloucester) (Con)
The Secretary of State said earlier that the Bill fulfils a manifesto commitment, but the manifesto commitment was not country-specific; it was country-agnostic. There was no mention of Israel or BDS in it. Indeed, another manifesto commitment was that we would champion freedom of expression and tolerance. He will recall that a former Secretary of State for Education wrote to all our universities to ensure that they allowed freedom of expression. How is that compatible with clause 4(1)(b), which states that any person who
“would intend to act in such a way”—
of having a boycott on any part of a foreign country—
“were it lawful to do so”,
would be prohibited from doing so and would be penalised by the courts for doing so? How does that represent championing freedom of expression and tolerance?
Michael Gove
I should say to my hon. Friend, whose commitment to advancing peace and to freedom of speech I respect, that all the Bill seeks to do is to ensure that boycotts and boycotts in name only cannot be brought forward. It has absolutely no effect—chilling or otherwise—on the exercise of freedom of speech.
Tim Loughton
I agree with the Secretary of State that there is a particular problem to do with Israel and BDS, but the Bill is not country-specific. Nor is it specific on whether it applies to investment or disinvestment. Of all the Bills I have ever read, it is particularly woolly in its drafting. Will the Secretary of State respond to a few scenarios? We found out that a number of local authorities in this country are twinned with Chinese towns. If they choose to un-twin with those Chinese towns, will they fall foul of the Bill? They are investing in twinning offices and travel expenses. If they were instead to set up a twinning agreement with a Taiwanese town, for example, or to set up a Hong Kong freedom centre, would they fall foul of the legislation? Indeed, under clause 1(2), on decisions
“influenced by political or moral disapproval of foreign state conduct”,
would flying a Ukrainian flag over a town hall fall foul of the Bill as well?
Michael Gove
I cannot see that any of those actions would fall foul of the legislation in any way. It is clearly the case that, in each of the areas that my hon. Friend mentions, particularly with respect to China, the Government are taking appropriate action to demonstrate our consistent disapproval of China’s behaviour, not just in Xinjiang but specifically, as he rightly mentions, in Hong Kong.
Mr William Wragg (Hazel Grove) (Con)
Will my right hon. Friend give way on that point?
Michael Gove
Not at the moment.
It is important, following on from the point made by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), to make clear that there is no evidence that anything in the Bill will impede our ability or that of local government to act against modern slavery in Xinjiang or environmental misconduct in Myanmar, or to maintain a united front against Russian aggression. Nor is there anything in the Bill to prevent any individual, including councillors, from articulating in their own right any opinion that they personally hold. It is also important to make clear that nothing in the Bill changes in any way UK Government foreign policy or our position on the middle east peace process. Nothing in it alters our support for an adherence to UN resolutions, and nothing in it explicitly or implicitly supports current Israeli Government policy towards settlements in the west bank.
Mr Wragg
By virtue of my right hon. Friend’s capacious mind, he has had the UK’s foreign policy delegated to his Department as well. He said in answer to the Chair of the Foreign Affairs Committee, my hon. Friend the Member for Rutland and Melton (Alicia Kearns)—indeed, he just reiterated the point—that nothing in the Bill will endanger our international obligations. Presumably, with that capacious mind, he has read the write-round from the Foreign Office, which says directly that FCDO lawyers advise that the clause on Israel and the Occupied Palestinian Territories would significantly increase the risk of the UK being in breach of our commitments under UN Security Council resolution 2334. Has he had a word with our right hon. Friend the Foreign Secretary about that?
Michael Gove
Yes. Across Government, every Minister supports the Bill, and quite rightly, because it gives effect to our manifesto commitment and ensures that we live up to the responsibilities that we have to deal with divisive campaigns that operate on the ground in a way that adversely affects minority communities and, most especially, the Jewish community.
Several hon. Members rose—
Michael Gove
I am coming to the end of my remarks.
I recognise that many people have, in good faith, expressed concerns about aspects of the Bill, but I point out that the provisions are specifically designed to provide a high bar to ensure that local government acts as it should in accordance with the interest of its citizens, to ensure that UK foreign policy is articulated with one voice, and to ensure in particular that a campaign that those on both Front Benches are clear has been responsible for the demonisation of the state of Israel, for the delegitimsation of its right to exist and for discrimination against Jewish people in this country, is, at last, dealt with. For those reasons, I commend the Bill to the House.
Mr Deputy Speaker (Mr Nigel Evans)
As I said earlier, the amendment in the name of the Leader of the Opposition has been selected. I call Lisa Nandy to move that amendment.
Lisa Nandy
South Africa is obviously a different case, but the point my hon. Friend makes remains and is well founded, because this Bill concentrates the decision making and judgment of hundreds of public bodies in the hands of just one person.
Kit Malthouse (North West Hampshire) (Con)
The hon. Lady talked about pensions, and there is an additional point. Whatever people may think of BDS or of an investment strategy that is ethical or otherwise, the money that sits in the local government pension scheme—and I am a member of the local government pension scheme—is the members’ money, my money. It is not the Government’s money to direct in one way or another; it belongs to the pension holders, and it is surely for them and those to whom they delegate its management to decide how it should be deployed. As she rightly says, if the Government are getting into the business of managing my pension money and I lose money because of decisions made by the Government, presumably I should be compensated.
Lisa Nandy
This is precisely the question that the Government have yet to answer, but we hope that will be forthcoming during this debate. I would add to what the right hon. Gentleman said that the local government pension service is already under a fiduciary duty to take prudent investment decisions based on an assessment of the financial consequence of a number of matters, including environmental and social governance, and when it divests on the basis of non-financial factors, it should follow the Law Commission direction that any financial impact should not be significant and that the decision would likely be supported by scheme members. I am not sure what happens when a local government pension fund is taking decisions that would not be supported by scheme members. We are talking about the pensions of 6 million people in this country, and I think these are important questions that the Government must answer.
I want to turn to one of our chief concerns about this Bill, which is the concentration of the decision making and judgment of hundreds of public bodies in the hands of just one person and the implications of that for some of the most persecuted people in the world. There will be significant effects on the Uyghur in Xinjiang, who are suffering such serious crimes against humanity that the Biden Administration have recognised it as genocide. The Secretary of State will have read the impassioned letter from those groups in The Times about the effects of this Bill. Surely we cannot abandon them to their fate. For the Rohingya in Myanmar, for the Tamils in Sri Lanka and for countless others, the concern is that this bad law prevents not just economic action to uphold human rights everywhere, but solidarity with some of the most persecuted people in the world.
As was said earlier, the Bill goes further and clause 7 grants to the Secretary of State or other relevant body the power to issue notices requiring all information to be handed over, if they suspect that a prohibited statement expressing a moral or political view about foreign conduct is in the process of or about to be made, including information in subsection (8) that would normally be protected by legal privilege. Let me clear about the effect of that: this hands over to the Office for Students, the Secretary of State, and the Treasury, greater powers than those available to the security services. I know there are Members on both sides of the House who are deeply troubled by that, and those who are not should consider for a moment how they might feel about this Bill if their party was not in power.
We should not be here. We have long fought for legislation to tackle what is a real problem, and we are determined to give the Government the opportunity to do the right thing. That is why today we are proposing an alternative that allows the Government and this House to keep our promise to tackle a long-standing issue of deep concern to the Jewish community, but avoids tearing up our commitment to human rights, local democracy and free speech, in a Bill that does not even appear to tackle the very problem it seeks to solve.
Kit Malthouse (North West Hampshire) (Con)
I rise with a heavy heart to agree with many comments from across the House on the nature of this defective Bill. I agree with Richard Hermer KC, who in a very compelling interview published in today’s Jewish News talks about the problems that this Bill presents not just for the UK as a whole but for British Jewry in general.
Taking things in order, my primary concern is the safety of that community. As somebody who has worked very closely with the Jewish community, particularly in the capital over the years, and who has a strong affection for the Haredi community in north London, whom I know well both in policing and crime terms and having dealt with their housing issues as Housing Minister, I am afraid that I agree with the right hon. Member for Barking (Dame Margaret Hodge) that this Bill, should it go through in its current form, is likely to damage and worsen their safety rather than improve it. In that I am with Jonathan Freedland, who wrote in the Jewish Chronicle just last week:
“What is the favourite refrain of the antisemites? That Israel is the one country you’re not ‘allowed’ to criticise. This bill takes a canard and, in the case of boycotts, turns it into the law of the land.”
The inclusions of clause 3(7) and, indeed, parts of clause 4 send a chill through that sense of debate, and will feed some of the disgusting conspiracy theories about the status of Israel and the influence that that country has around the globe. I have to say that I fear for the safety of the Jewish community should the measures be passed in that form. There are those who would do its members harm—we all know that in this House, and I have seen it for myself—and we cannot give them succour by falling into that trap.
My second concern is the practical impact of the Bill on many organisations across the country. As we heard from the hon. Member for Sunderland Central (Julie Elliott), this is a lawyers’ charter. There will be challenges to and fro, involving universities, pension funds and councils. Every decision that is taken will be scrutinised, and, moreover, councillors who have strong convictions in either direction will seek to find ways that are oblique to fulfil their own sense of moral or ethical obligation. There are groups out there who represent other countries, such as China and Myanmar, who will seek constantly to push councils in their direction, and not just in terms of Israel or Palestine. As a result, a huge amount of money and effort, and KCs at dawn, will be expended in pursuit of this legislation, and the impact will be enormous.
Thirdly, two key fundamental issues that are intrinsic to the way we live in the United Kingdom are challenged by the Bill. The first is, obviously, the free-speech challenge to which a number of Members have already referred, and which is represented in clause 4(2). It appears that I cannot even criticise this law, whether I am a council leader, a university vice-chancellor, or the chief executive of a company that is performing public services. I have never before seen legislation that outlaws disagreement with the law, and I think that breaching that right to free speech is a very problematic step.
The second of these issues was mentioned by the hon. Member for Wigan (Lisa Nandy). A law granting powers greater than those granted to the police to the investigatory or enforcement authorities identified in the Bill—the Secretary of State, the Office for Students, and one or two others—and allowing them, in particular, to breach legal privilege so that organisations can effectively go on a fishing trip looking at the legal advice that individuals have taken as they contemplate investment decisions is a Rubicon that I believe it would be wrong to cross.
The fourth area that concerns me relates to our tradition of pluralism in this country. There is no doubt that the Bill will send a chill through debate about a series of conflicts across the world. Whether we are talking about the Uyghur Muslims in China, the fate of Hong Kong Chinese or, indeed, those in Israel and Palestine, the fact is that everyone who is engaged in democracy, locally or on a devolved-nation basis, will have to be extremely careful about what they say. They will have to think twice and three times before they discuss these issues, lest that should prejudice, or be seen to prejudice, an investment or other decision that they may make in the future.
This is especially problematic in the context of academic freedom. As we heard from the Chair of the Select Committee, my hon. Friend the Member for Rutland and Melton (Alicia Kearns), we have just passed a law to guarantee academic freedom: freedom on campus. For that freedom now to be restricted. particularly for those in leadership positions in universities, strikes me as perverse. It should come as no surprise that the Union of Jewish Students is flatly opposed to the Bill, which is apposite given that its members are often the people most exposed to antisemitism in this form.
Finally, I want to raise the issue of timing. The right hon. Member for Barking said that this was the worst Bill at the worst time; I think that it is a defective Bill at a dreadful time. Given what is unfolding in Israel and Palestine today, given the toll of deaths that we have seen so far this year on all sides and given the international concern about the escalating violence in that part of the world, the introduction of this Bill at a time when many countries in that region are extremely concerned about what is going on will be seen by Arab countries in particular—although Members may not feel this themselves—as being partial, and as privileging one country over the others. I think that that will be detrimental not just to our interests in the United Kingdom, which are a primary concern. but to the interests of Israel, Palestine and the wider region.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
I thank Members from throughout the House for their impassioned and heartfelt contributions. Let me remind the House why we have introduced this legislation: we believe that we should have one foreign policy, and we also believe that BDS campaigns risk undermining community cohesion. We believe that public bodies should not be wasting time and money on pursuing their own foreign policy agendas and should instead focus on providing vital public services and delivering value for money for the taxpayer in their procurement and investment decisions.
Let me also clarify certain misapprehensions that certain Members have about the Bill. First, the Bill applies only to public authorities. It does not apply to private individuals or private companies, except if they are exercising public functions. It does not place restrictions on local councillors, except when they talk expressly on the behalf of their local authority. It does not prevent public authorities from making statements on foreign policy; it prevents them only from making a procurement or investment decision if it is motivated by moral or political disapproval of a foreign state’s conduct.
Many Members have mentioned clause 4. I reassure Members that clause 4 only prevents public authorities from making statements of intent to boycott or divest. It does not prevent public bodies from disagreeing with this legislation. The Bill does not ban ethical, religious or socially conscious funds, so, for instance, climate change funds can continue with the Bill unless there are issues that are country-specific.
A number of Members mentioned clause 3(7). I want to clarify the role of the clause. The Bill applies equally to all countries. Countries can be exempted from the ban by secondary legislation, which is what we are planning to do with Russia and Belarus—[Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. This has been a very good-natured and difficult debate. It has been held with disagreement, but courtesy across the House. People have now come into the Chamber who have not been here during the debate and it is most discourteous of them now to make so much noise that we cannot hear the Minister. That is bad behaviour and it is bad for the way in which we do things in here, especially on a day when we have had a very well-constructed and conducted debate.
Felicity Buchan
Thank you, Madam Deputy Speaker.
Given the focus of the BDS campaign on Israel, we are simply saying in this clause that, for Israel to be exempted from the legislation, it will require primary legislation. I want to make that very clear. This policy does not affect our foreign policy position. We are not legislating for the UK’s foreign policy on Israel or on any other country in the Bill. The purpose of the Bill is to ensure a consistent approach to foreign policy across our public bodies, led by the UK Government. The Bill will not prevent the UK Government from imposing sanctions, or otherwise changing our foreign policy on any country in future.
I stress that none of the provisions in the Bill changes the UK’s position on Israeli settlements in the west bank and the Golan Heights. We are continuing to urge Israel not to take steps that move us away from our shared goals of peace and security. We support a negotiated settlement leading to a safe and secure Israel living alongside a viable and sovereign Palestinian state, based on 1967 borders with agreed land swaps, Jerusalem as the shared capital of both states and a just, fair and realistic settlement for refugees.
Furthermore, our position on settlements is clear: they are illegal under international law; present an obstacle to peace; and threaten the physical viability of a two-state solution. Our position is reflected in our continued support for UN Security Council resolution 2334, with which the Bill is compliant.
Richard Graham
What the Minister says is not really what is reflected in the Bill because a specific exemption is given not just to Israel, in what should be a country-agnostic Bill—just like our manifesto commitment—but to two parts of Israel which we do not recognise as part of Israel under international law. Therefore, there is specifically an exemption for Israel. Does she agree—the Secretary of State said earlier that he would listen very carefully to suggested amendments—that this is something that needs to be worked on during the Bill Committee?
Felicity Buchan
UN Security Council resolution 2334 asks countries to differentiate between Israel and the occupied territories. We have done that in this clause; they are clearly separated out in different paragraphs. However, as the Secretary of State said in his opening remarks, we are open to any discussions on the Bill and of course we want the best legislation here.
Felicity Buchan
I am very conscious that, in the interests of time, I only have a few minutes.
Alicia Kearns
My hon. Friend knows the incredibly high esteem I hold her in, but it just is not credible to keep repeating that this does not change how we treat the Golan Heights, which have been annexed, and the Occupied Palestinian Territories. The Foreign Office’s own legal advice states that the Bill could breach UNSC 2334. How am I being told repeatedly from the Dispatch Box that that is not the case, when that is what Government lawyers are saying themselves? We have a responsibility to uphold that resolution. We drafted this legislation and therefore we need to remove clause 3(7). We on these Back Benches have offered a landing platform to the Government: “Remove that clause. You can still do this.” But please do not repeat that this does not change anything when the Government lawyers themselves say it does.
Felicity Buchan
The Government’s view is that the Bill is compliant with UN Security Council resolution 2334.
I move on to the reasoned amendment, which rightly recognises the impact that boycotts and divestment campaigns can have on undermining community cohesion. The Government, however, are resisting the amendment on the basis that this legislation is a robust and proportionate means of stopping public bodies engaging in divisive campaigns and of fulfilling our 2019 manifesto commitment. The amendment refers specifically to the Uyghur Muslims. This Government are concerned about the issue of Uyghur forced labour in supply chains and are taking robust action. The exceptions in this Bill, alongside the exclusion grounds in the Procurement Bill, will keep suppliers involved in labour market misconduct, including human trafficking and modern slavery, no matter where they are in the world, out of public sector supply chains.
We have already discussed the point on the occupied territories and the Golan Heights. The amendment claims that this Bill limits freedom of speech, but that is not the case. Private individuals and bodies are not affected by the legislation. The right to freedom of speech is protected by article 10 of the European convention on human rights and the Government remain strongly committed to the UK’s long and proud tradition of freedom of speech.
The amendment also criticises the powers given to the Secretary of State to enforce this ban. Far from being the unprecedented powers claimed, they are modelled on existing powers of regulators such as the Office for Students and the Pensions Regulator. It would simply not be logical to impose a ban with a toothless enforcement regime.
This legislation delivers an important manifesto commitment. It will ensure that the UK has a consistent foreign policy approach and speaks with one voice internationally. I look forward to working with hon. Members throughout the Bill’s passage to deliver this important legislation and to continuing engagement on the issues that hon. Members have raised in the House today. I commend the Bill to the House.
Question put, That the amendment be made.
Economic Activity of Public Bodies (Overseas Matters) Bill (First sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 5th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 5 September 2023 - (5 Sep 2023)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Q
There have been instances where local government pension schemes have come under pressure from civil society groups to divest from a particular country or territory. Is that something you are aware of? What kind of pressure have you faced? Do you think that the Bill will allow pension schemes to focus on delivering value for their members, rather than being distracted by political campaigns?
Jon Richards: Perhaps I can start. Thank you very much for the question and for inviting us here. There have been limited incidents where there have been local attempts to push forward BDS at local levels. As a pension scheme, we are clear that this is a scheme about delivering pensions. Its fiduciary duty is on members to deliver what members want and expect. If, at any time, there are questions raised, we remind people of the fiduciary duty, which is the most important thing that drives matters.
Unfortunately, in recent years, we have seen a number of attempts by Governments and even suggestions by both the main parties that we should invest in various things—private equity and all the rest. That interferes with our duty to deliver pensions, and that is what drives us. So there have been a few small attempts, but they have not taken place. We have also seen some global investment managers making separate decisions, which our pension funds do not have any control over. Those are outwith our ability—we cannot do anything about it if they make those decisions, because it is a global investment association.
What we are fundamentally saying is that our primary duty is our fiduciary duty. Unfortunately, this Bill will interfere in that, and that is what our concern is. It has the potential to increase our administrative costs, as we have to monitor whatever we are asked to do, but also potential legal challenges, which we expect, because we know this is a very difficult minefield. So we have real concerns about the administrative governance and financial costs that this will put on us.
Felicity Buchan
Q
Jon Richards: Our primary aim is our fiduciary duty to deliver pensions, and you will hear us say that probably 10 more times throughout this session.
Felicity Buchan
Q
Jo Donnelly: It is not a technical matter. My role here today is to assist you on the technical pension side of things.
Felicity Buchan
Q
Jo Donnelly: I think there are concerns around the clarity of a number of the provisions in the Bill and around how that will be dealt with in practice by pension committees, who are primarily making the decisions in the LGPS around investments and around strategy.
On the procurement side of things, I have taken some advice from my procurement colleagues in the LGA—obviously, I am not a procurement expert—and they have told me that, on the procurement side of things, there is nothing here that would cause any problems. The thing that is asked for is some more clarity around how the provisions on procurement in this Bill would interact with the Procurement Bill, which is currently going through Parliament as well. I think there is the potential for some confusion about how the provisions of each Bill interact with each other. So there is a request for some clarity and for clear communications to local authorities, and the LGA is happy to assist with that clarity on the procurement side of things.
Felicity Buchan
Q
Jo Donnelly: On the procurement side, yes.
Felicity Buchan
Absolutely, yes.
Jon Richards: But not on the pension side. That is the difference: with procurement and pensions, this Bill will have a different impact on the ability in procurement, as opposed to the fiduciary duty, as I will say many times, versus pensions trustees.
The Chair
Before the Minister proceeds, could I just remind her that we have a fairly tight timetable? Perhaps she could take that into account in future questioning.
Felicity Buchan
Q
Jo Donnelly: There are not that many options in the pensions space for the LGPS. The Pensions Regulator already has a role in relation to the administration and governance of the LGPS, but it does not have a role in the investment side of the LGPS—it does with other, private sector pension schemes, but not the LGPS. So the provisions in the Bill would expand TPR’s powers over some investment-type decisions in the LGPS. Our main concern around the regulator’s role is that they ensure that they limit their oversight of investment decisions to the provisions of the Bill and that they are properly resourced and trained to do that role, because it is quite different to what they are used to doing already.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
Jon Richards: I do not think we do. I think we think that the level of regulation of the LGPS is also already very high. You will have seen that the Government have just introduced a whole series of additional pension consultations, which we have to do—which poor Jo has to deal with and spend a long time on. Again, we think there is significant regulation. We have a regulator and we have a clear fiduciary duty. Trustees have clear responsibilities, including training responsibilities. They have a clear understanding of what should be done. There is a need for improving governance, and we have been doing a lot of work on that, including training. We have also tried to issue guidance on the need to be clear that, if there are challenges, or attempts to move people away from the fiduciary duty, we need to drag people back to that, and they should not be diverted by some of the political games that are potentially out there.
Felicity Buchan
Q
Russell Langer: Sure. The boycott, divestment and sanctions campaign—BDS—against Israel is a pernicious campaign, which seeks to single out the world’s only Jewish state for unique treatment. As I just said in the previous answer, when we look at the picture in public bodies around this country when it comes to foreign policy discussions, Israel is the only country that is singled out in this way. That was something that was made clear in the House of Commons Library briefing, prepared ahead of Second Reading, as well. I therefore believe that the legislation is necessary to end the practice of Israel being singled out in that way by public bodies around the country.
On the links to antisemitism, the link between antisemitism here in the UK and the situation in Israel is clear—it is clear in the statistics, in the months with the highest levels of antisemitism on record, which all correspond to the months in which conflicts have happened in Israel. That link is clear.
When the Jewish community is most vulnerable in this country and when antisemitism is at its highest, we tend to see public bodies under intense pressure from campaign groups to get involved by boycotting Israel. That comes back to the point that I made about it being the only time that they are usually asked to get involved in such foreign policy. The legislation will therefore allow public bodies such as local authorities, higher education institutions and cultural organisations to focus on improving community cohesion at a time when it is at its most threatened. The legislation is helpful to that.
Daniel Sugarman: If I might add to that, on the links to antisemitism, there are a few points to consider, the first of which is the somewhat questionable double standards. People who take an extreme interest in the Israeli-Palestinian conflict and call for a full boycott of Israel seem rarely, if ever, to call for boycotts of any other country. It appears to be just the world’s only Jewish state that gets that sort of treatment.
The history of boycotts against Jews is a painful one, linking directly back to Nazi Germany, and it is clear that at least for a significant percentage of the community, when we hear about boycotts against Israel, that is a link that is raised. We have also had cases, unfortunately, where people participating in BDS campaigns have gone beyond Israel. For example, in a supermarket, a bunch of BDS campaigners went in and started defacing products that they felt were Israeli-linked, but of course they went straight for the kosher food section, not appearing to distinguish. That sent a clear signal.
I will make two more quick points, if I may. First, polling suggests that more than 80% of British Jews see Israel as either central or important to their Jewish identity. There is a very strong link between the Jewish community and Israel. When Israel and Israel alone is targeted in such a manner, that really has a strong impact on the Jewish community.
The other thing to consider is that the co-founder of the BDS campaign has been very clear about what he sees as the end goal, which is not a two-state solution, but the destruction of Israel as a state and its replacement with a state in which Jews are a minority. Given that in the past 50 or 60 years we have seen exactly what has happened to every single other Jewish community in the Middle East that was a minority, I think that the Jewish community here and elsewhere is right to be profoundly concerned.
Felicity Buchan
Q
Russell Langer: On clause 4, as I said, with BDS in public bodies, that is something we have seen over the course of several years. Often, while the results have an impact on the Jewish community, that impact is not limited to the implementation of BDS; it is part of the febrile nature of the debate, bringing it into our public bodies. Once again, the specific point is that that tends to be the only foreign policy with such debate in our public bodies in this country. Therefore, I understand the purpose of the clause, and to that extent definitely see the need for something.
In terms of the enforcement powers, absolutely—this Bill would have little merit without having adequate enforcement powers. Without them, it would lean towards a situation that we have now, whereby it is up to individual campaigners to raise these issues through judicial review and so on. Therefore, one of the key parts of this Bill is having proper enforcement powers to ensure that it is enforced.
The Chair
Q
Russell Langer: Absolutely—I am tempted to give you that one-word answer. There is absolutely no issue here in the Bill in terms of criticising Israel. The UK should have robust foreign policy on all issues, including Israel, and I do not think that anything should get in the way of that. However, what we have seen is a problematic picture, whereby the only country that any public body seeks to wish to criticise tends to be the one Jewish state in the world, and that I have an issue with. Nevertheless, I am not getting in the way of anyone here criticising Israel should they wish to do so.
Felicity Buchan
Q
Councillor Deering: I do not know whether it will disappoint you, but in Hertfordshire we have had very little agitation—if I can use the word—of this type. Ahead of me coming here today, we did the best that we could to check our records, and we think that there may have been some form of question or petition that may have come through in 2022 related to Israel. We then had something post the Ukrainian issue that related to Russia. We think that that is just about the limit of our experience in recent times, so maybe we do not have a lot of experience to draw on. We would say that that is a good thing, because in Hertfordshire we are trying to manage our finances in an objective and hopefully sensible way for the benefit of the residents of Hertfordshire, not for any particular lobby group, whichever it may be. My answer to your question is yes: what you are looking at here probably would be helpful.
If I may just add a rider, there is some crossover between what you are looking at here and procurement. I think we would be keen that no grey area emerges across those two areas of interest.
The Chair
Q
Councillor Jamieson: I would also reflect that my personal experience in Central Bedfordshire is that we have not had motions of this nature relating to countries. Interestingly, we have had, on occasion, motions that would not be covered by this Bill, but which I would say were of a broader political nature and did not focus on what local government should be doing, which is delivering for our residents locally. My own personal view is that that is what councils should be focused on. Foreign policy really should be a matter for Government.
Felicity Buchan
Q
Councillor Deering: That is quite a big question. I am conscious that you will be taking evidence from all sorts of people. I might provide you with a neutral answer, if I may. We can see why they are there. Again, I do not wish to be repetitious or boring, but really we simply try to run our finances as best we can. In principle, we do not want awkward issues to come up that make it difficult for us to run our finances in the way that we think is best for our residents.
Councillor Jamieson: I do think that it is important that pension funds—as is currently the regulation for pension funds—can take into account issues that would be of concern to their pension holders. That is right, and that is a carve-out, albeit it also has the carve-out—I cannot remember the exact wording— that effectively it must not have a significant financial impact. I think that is right. For instance, with things around the environment, people might have concerns when investing in certain companies. Local government has a public health duty and I could completely understand if certain councillors wanted to avoid investments in businesses that they deemed were harmful for public health. A classic example would potentially be the tobacco industry. I think it is important that we can still make those decisions.
Felicity Buchan
Q
Councillor Deering: I think we are. I think we would support it for the central reason, which is that this country’s foreign policy, it seems to us, should be made by Government and should therefore be a coherent, unified foreign policy, rather than being fragmented across goodness alone knows how many organisations across the country, thereby becoming disparate. So yes, we are supportive.
May I come back on something the previous witness has just said in relation to pensions? Our experience is that if we find that there is some degree of pressure, it is more likely to come in relation to pensions. Our pension fund is valued currently at about £6 billion, which is a lot of money. We have 115,000 members and 400 employers. We take our responsibilities for our pension extremely seriously and I have been on our pension committee for a number of years. We have from time to time had situations where people, exactly as has just been said, come along and say that we should not be investing in x or we should not be investing in y because. There is a degree of difficulty with that because we understand always where people are coming from, but clearly, in the pension world, we have a fiduciary duty to deliver—to put it loosely but broadly—the best pension we can for all the prospective beneficiaries of our pension scheme. That comes up from time to time.
At Hertfordshire, we have an extremely good pensions committee. It is cross-party, as you would expect, but it is not party political. The reason I have come back to this is because, of course, environmental, social and governance is an issue in all investment these days. All the advisers that advise us in relation to our pension investments have some facility to advise on ESG. It might be thought that that strays into that area—tobacco, coal or whatever it is—but ESG works its way through to value and you start to realise that, actually, it is an investment criterion because it affects the value of what you are investing. I thought I should just say that because that is probably our biggest experience in this area.
Felicity Buchan
Q
Councillor Jamieson: I am speaking personally here. This is not an LGA view, just to be clear. I think the principle of this legislation is absolutely fine and, in many ways, helpful because it enables people on a pension committee to be very clear that they cannot consider countries when looking at this. However, my caveat is that there are some details in the regulations that need clarifying and those are quite concerning. It is not the principle but some of the details and we just want to make sure that some of those are right.
Alex Norris
Q
We speak a lot in this Parliament about transferring power from here to local communities, namely our local councils. The Bill very much transfers power from our local councils to this place. How do colleagues in the local government family feel about that?
Councillor Jamieson: Thank you very much for your kind words. As I should have mentioned in my little statement a moment ago, I am very vexed—and was very vexed as chairman of the Local Government Association—by the underlying trend of giving powers to local government with one hand and taking them away with multiple hands. I can genuinely understand why it is being done, but I do not like the fact that it is another example of central Government just eating away at the freedoms and devolution of local government, but there are far more contentious areas than this one in which I would argue that the Government have taken back powers.
Councillor Deering: My view is very similar. I do not know that in Hertfordshire we feel particularly that this is a power grab from us; I think we understand the rationale of the Bill, or the proposal. If we had more experience of problems in the area, maybe we would feel differently, but I think we would say that we are fairly relaxed about this.
The Chair
We have a couple of minutes left in this session, if anybody has a question that they have not had the opportunity to ask. I call the Minister.
Felicity Buchan
Q
The Chair
Before I bring in the witnesses to answer that question, Bob Blackman has a very quick point.
The Chair
We will now hear oral evidence from Hannah Weisfeld, director of Yachad. For this session we have until 11.10. Could the witness introduce herself, for the record?
Hannah Weisfeld: I am Hannah Weisfeld, the executive director of Yachad.
Felicity Buchan
Q
Hannah Weisfeld: I guess I should start by clarifying who we are and what we do. We are a British Jewish organisation that works within the mainstream of Anglo-Jewry to build support for a political resolution to the Israel-Palestine conflict.
We do not support or advocate for the BDS movement, because we believe that putting pressure on one side does not necessarily bring about a resolution to the conflict. However, we are very clear that we support the right to non-violent protest. While we do not support or advocate for the BDS movement, we support the rights of individuals to adopt methods of non-violent resistance to Israeli Government policy—and in fact to the policy of any Government anywhere in the world. So, we would not advocate for the movement, but we would absolutely advocate for the right of people to express their opinions and to apply pressure in a non-violent way.
Felicity Buchan
Q
Hannah Weisfeld: Well, I know that one of the motivations for this piece of legislation has been around community cohesion and the idea that debating issues that are contentious at a local level creates community dissonance and disagreement. There is a reverse to that, which is that when you crack down on the ability of people to express their opinion and to express it in local democracies, you can do the exact opposite, which is that rather than bring people together, you can create real disharmony among communities. That has been mentioned already in the Committee this morning. There has been a tiny number of examples of there being what we would refer to as BDS motions at a local government level and in public bodies. I would not be overstating the reality if I said that if this legislation passes in its current form, there will be BDS motions in public bodies all across the country where people try to test this legislation because they are so frustrated that their right to express an opinion has been clamped down on. If the motivation here is to create community cohesion, there is a very real worry that this is going to do the exact opposite.
Felicity Buchan
Q
Felicity Buchan
I am sorry; I was just about to say, do you agree?
Hannah Weisfeld: I do not think we have evidence, and the Committee has not just heard that the people representing local government have been particularly distracted. To me, the Bill is not really about that issue; it is about creating what I think will become quite a nasty debate around Israel-Palestine, and I do not think that that is going to benefit the Jewish community particularly.
The Chair
This is a very short session and three people have signified that they want to ask questions. I will bring in Wayne David. Again, I ask Members to be concise in their questions and our witness to be equally concise in her answers.
Felicity Buchan
Q
James Gurd: I think this Bill is a very welcome piece of legislation and will go a long way towards reasserting the UK Government’s reserved foreign policy powers. In recent years—over the past decade, really—we have seen that being challenged by an increasing number of public bodies pursuing very divisive BDS activities in the UK. Indeed, the Government have made repeated efforts through the issuance of guidance to try to challenge that; I think the Government have now finally, rightly, reached the decision that legislative action is required.
Those BDS activities, as we have heard from a number of other witnesses this morning, have led to community division. I do not see it as the place of public bodies to be, effectively, picking one side in a dispute over a foreign policy matter that is several thousand miles away. The Jewish community—I believe, as a non-Jew—has felt increasingly isolated in the United Kingdom throughout this process. It is probably worth stating that no UK political party is on the record as supporting BDS, so I would hope that there will be broad support for this.
I believe that this legislation will also have a positive effect for the UK. The UK has very strong economic relations with Israel. Israel makes a very important contribution to this country’s national health service, for example, and BDS has had a chilling effect on those relations and on the prospect of further improved relations over recent years. I know that that is something that CFI certainly welcomes in the Government’s efforts to secure a free trade deal with Israel.
I believe that the Bill would also support the UK Government’s belief in a two-state solution. That is something that I believe is undermined by BDS. It is a movement that is, I believe, associated more with extremists. Certainly you can look at the Palestinian BDS National Committee, which is the organising body over in the Palestinian territories. That body includes organisations such as Hamas and Palestinian Islamic Jihad, which are terror groups proscribed here in the United Kingdom. Within the UK context, the Palestine Solidarity Campaign is seen as one of the most prominent organisers of the BDS activities here in the United Kingdom. It is an organisation that until a few years ago—I feel this is probably worth putting on the record—had a logo presenting a future Palestinian state on top of a state of Israel. So I believe that the Bill will have a number of positive implications.
Felicity Buchan
Q
James Gurd: I believe that that is a reasonable approach that the Government have decided to take, and I believe it is a reaction to the fact that BDS is unique in its singular focus on the state of Israel. We have seen, as a number of others have referred to this morning, a House of Commons briefing note that pointed out that of all recorded examples of boycott activity pursued by public bodies in the United Kingdom, they are targeting exclusively Israel, so there is clearly a unique problem here.
When you look at the Bill in a broader sense, it is a Bill that has universal application. Foreign policy is a reserved matter for the UK Government; it is not, I believe, the place of public bodies to be pursuing that. They are there to represent all their diverse communities equally and to ensure that they are fiduciarily responsible in how they deliver that.
Nicola Richards
Q
James Gurd: We have seen a growth in BDS activities in public bodies over the last decade. As I have referred to before, BDS is uniquely discriminatory in nature, as it only targets Israel.
I first encountered BDS while I was at university. I was at King’s College in ’09, which coincided—as is so often the case when there is conflict in Israel and the Palestinian territories—with a spike in BDS interest. That led to a series of BDS activities, which students were perfectly entitled to do and which they will be able to continue to do under the Bill, but it led to a series of antisemitic incidents on campus. The head of the university had to send around a communication to all members of the student body to call it out. It has since gone mainstream, in the sense that it has left the student body politic and entered public bodies here in the UK, so it has grown as a challenge.
Having said that, it is worth putting it on the record that the Bill will in no way challenge the right of a private individual or a private company to pursue BDS. They are perfectly entitled to do so if they wish.
Economic Activity of Public Bodies (Overseas Matters) Bill (Second sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 5th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 5 September 2023 - (5 Sep 2023)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Chair
Good afternoon, everybody. Welcome to the second sitting of evidence on the Bill. We will hear from six panels of witnesses this afternoon. Gentlemen are more than welcome to remove their jackets; it is quite warm in here.
First we will hear from Dr Bryn Harris, chief legal counsel at the Free Speech Union, and Dr Alan Mendoza, the executive director of the Henry Jackson Society. Presumably Dr Bryn Harris will be brought in when he arrives, but meanwhile, Dr Mendoza, if you are happy for us to do so, we will start by directing our questioning to you. We have until 2.30 pm for this panel. Could you please introduce yourself for the record?
Dr Mendoza: Yes, I am Dr Alan Mendoza, the executive director and a founder of the Henry Jackson Society, which is a foreign and security policy think-tank.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Q
Dr Mendoza: Thank you, Minister. The answer is very simple: yes. I think it is quite obvious that the Bill does not preclude any individual councillor, or indeed anyone working for a public body, from expressing their personal opinion on a boycott or something similar. It merely prevents bodies that really have no jurisdiction in such areas from passing formal motions on them. That is quite clearly laid out in the legislation, and the ECHR would agree.
Felicity Buchan
Q
Dr Mendoza: Yes, again, I agree. First, if you are stopping the ability to boycott, there is no point having the ability to talk about those issues collectively. Secondly, if you have a debate about that, it can inflame community tensions. We have seen lots of examples in the past few years where even discussing these matters—alleging or suggesting that one country might be responsible for x, y or z—lends itself to an increase in community tensions on the ground; people take it as an excuse to go into worse forms of hatred. There is evidence that that has happened. If we are saying that public bodies that are not the UK Parliament or UK Government should not have control over foreign policy decisions, it makes sense to stop them having the ability to talk about the intent to do something that they will not be allowed to do.
Felicity Buchan
Q
Dr Harris: If you could repeat the questions, that would be helpful.
Felicity Buchan
The first question was about the Government’s assessment that the Bill does not breach article 10 of the ECHR because it applies only to public authorities while they are carrying out public functions, and private individuals can express views, and choose to boycott and divest. The second question was on clause 4, and on whether stating an intent to boycott has similar impacts on community cohesion to boycotting.
Dr Harris: Thank you. To state my position generally, the goal in clause 1 is broadly okay and compatible with free speech; clause 4 is not. I disagree with some of the Government’s analysis. The explanatory notes state that public bodies do not have article 10 rights. That is certainly true of core public bodies—the police, the NHS, Whitehall—but my understanding is that that is not true of hybrid public bodies, which may well include universities. Certainly, the European Court has held that boycott is, or can be, an exercise of the right to freedom of expression, as in the 2020 case of Baldassi and France, and so free speech rights are certainly engaged. This Bill very clearly targets expressions of political and moral conscience, which is to say the form of expression that is most highly protected by article 10. I think there are some very real problems, and perhaps there will be time to develop my view on what those issues are.
Regarding clause 1, as I say, I think it is acceptable, first, that Parliament sets out the relevant considerations that a public authority may have in mind in making a decision. The public law—the common law—already does that, so I think that is perfectly acceptable in principle. I think it is right as well that the UK should not be embarrassed by perhaps rather adolescent campaigning issues, rather overstated campaigns that perhaps unfairly denigrate friendly countries; I think that is completely understandable.
The problem I have with clause 1 is the justification, and that would go to any assessment by a court were there to be a compatibility challenge. On that justification—that the UK should have a single front or a single, agreed foreign policy—I am not sure that the full range of public authorities owe, or should owe, any duty of fidelity to central Government’s foreign policy. In fact, I think the opposite: that our public debate is likely to be enriched and informed by greater diversity. I think that that justification is questionable and would go into the article 10 assessment were there a challenge.
I very much agree that the second justification—of preserving community cohesion—is a legitimate aim. I think it is entirely foreseeable, and probably has occurred, that some BDS campaigns have been informed by malice against Jewish people. However, it is to be noted that this Bill will do far more than merely target and limit those divestment campaigns that are malicious. It would cover, for instance—and I draw no parallel here with BDS—the anti-apartheid movement of the 1980s.
I will move on to clause 4 because you did raise that. My position is that clause 4 really needs to go in its entirety. To take clause 4(1)(a), which is the prohibition on statements of intent, there is no need—I think it is not necessary either politically or perhaps even legally—to prohibit statements. The mischief that is to be prohibited is the threatened act. The law will already help there. If a local authority were to resolve that it is going to divest the goods of a certain country, there would be the option of a prohibiting order by way of judicial review, and that targets the act. The court would be able to say, “You may not carry out this act that you threaten to carry out.” It is not clear to me that the law needs to go further in prohibiting statements. That is not to say that the law could not go a bit further, but I think there is a question regarding the necessity of this measure and the necessity of interfering with the freedom to make political and moral statements.
Clause 4(1)(b), as you can probably imagine, is the most problematic. I do not think the Government, from what I have seen, have put forward any rationale for why hypothetical statements are a mischief. It seems to me a huge overreach concerning political speech. I see very little harm that it would do, and I think it is going to cause serious defensiveness and caution in debates on the governance of universities and local authorities, which perhaps may be well worth having, but I will leave it there for now.
Felicity Buchan
Q
Dr Harris: Correct.
Felicity Buchan
Q
Just a few quick follow-up questions. The Bill contains the power to exempt certain countries as time goes on so that foreign policy can be adaptive. Do you agree with that? Secondly, briefly, do you think that the BDS movement has been successful in pressurising Israel?
Dr Harris: Sorry, can you repeat the first question? I am so sorry; it skipped my mind.
Felicity Buchan
The first question was about the Bill containing the power to exempt certain countries as time goes on, so it can be adaptive to foreign policy.
Dr Harris: I see. I accept that. Again, I will go to the example of the anti-apartheid movement. I want to make it clear that I think it is entirely wrong to compare the only democracy in the middle east, Israel, to apartheid South Africa, but for the purposes of the Bill, the anti-apartheid movement in the ’80s is relevant. In the debate that occurred there, there was a broad disagreement between central Government and their foreign policy, and a wider civil society movement of churches, trade unions and, eventually, a large number of local authorities —about 120. It was eventually curbed in 1988 with the Local Government Act, but the question is: was that debate and that tension productive? Did it inform the public debate? Did it aid the global movement against apartheid? I think it surely did.
It is beyond doubt that the British anti-apartheid movement led the world outside South Africa. For me, that is a great victory of British decency—of British soft power and, of course, British free speech. Going back to the power that you mentioned, whereby the Minister can, by regulation, add countries to the list, that debate and that soft power would be considerably diminished, especially in their legitimacy, if they were essentially licensed by the imprimatur of the Minister saying, “These are debates you can have.” For me, that would really reduce the power of that bottom-up movement.
Felicity Buchan
Q
Dr Mendoza: Yes. I disagree a bit with Dr Harris. I am not for a moment saying that the anti-apartheid movement in civil society was not valuable or successful—it hugely was—but let us focus on what we are talking about: a tiny sliver of institutions looking at the question of boycotts, as opposed to forbidding the discussion of boycotts in public, which sounds like where Dr Harris is heading in this sort of discussion. That is not what the Bill prevents. In fact, you can talk about any foreign policy aspect and any country, even in areas where a local authority or university has no power or authority to particularly affect a policy, and that will not be stopped. We need to focus very much on the narrowness of the Bill, which relates purely to boycotts and the sanctions policy.
Casting our minds back to the 1980s, had that been forbidden, would it have had any effect on the effectiveness of the anti-apartheid movement? I think absolutely not. There was enough out there that would have driven it anyway in terms of foreign policy; there would have been that debate. We are not talking about having any curbs on the freedom of speech of individuals.
I can guarantee that, in today’s society, with the 24/7 focus on social media and with so many outlets to talk about things, all the Bill is trying to do is, essentially, keep authorities that have no particular purpose in looking at specific foreign policy issues in the form of boycotts from wasting their time and public money in doing so. Again, privately, they will be perfectly able to do it: publicly, there is no call for it and there is no need for it, given that it will be covered elsewhere. This House is where you should be debating foreign policy—not in local councils, not in devolved Assemblies. I speak as a local councillor in that regard. I can assure you that were I to be speaking on my area of expertise—foreign policy—in the council chamber of my local authority, my residents would rightly ask, “What on earth are you doing wasting council time like this?”
Let us get back to the focus of what we are trying to do, which is something very narrow, to reflect the proper place of foreign policy in this country and the proper people entitled to make decisions on it, without compromising anyone’s ability to talk about, argue and discuss it, and tear it apart if necessary, in a private capacity.
Dr Harris: If I can briefly follow up, I defer entirely to Dr Mendoza on the effectiveness of the BDS movement: I do not know.
I omitted to say that I accept that the clause 4 prohibition is on a person who is subject to clause 1. The difficulty—and this is perhaps a drafting point—is that clause 1 concerns decisions, and therefore it squarely fits within section 6 of the Human Rights Act. Then, in clause 4, we go to persons who are subject to clause 1. What is unclear to me—and I trust this is not my misreading of the Bill—is when the clause 4 duty bites on that person. Does it only bite on them when they are exercising the decision-making power in clause 1, or does it bite on them if they hold that power? If they generally have that power by statute, are they therefore constantly under that clause 4 duty? The scope of clause 4 is unclear at the moment and, as with any restriction on liberty, it should be narrowly stated and certainly be narrowly construed by the courts.
Dr Mendoza: Dr Harris has reminded me that I did not answer the BDS effectiveness question. It has been entirely ineffective as a campaign globally, so much so of course that it is not shared formally by the Palestinian Authority itself as a policy. That should tell you that this is a fringe movement that has no purchase even with the elected authority within the PA.
Dr Harris: If I could quickly come back—there is a bit of a double act going on with Dr Mendoza—
The Chair
Just a reminder that this panel is due to conclude at 2.30 pm and I have three more Members who have indicated that they wish to contribute. If anyone wishes to contribute, please waggle your fingers at me. Do you want to add anything further, Dr Harris?
Dr Harris: Briefly, I agree with Dr Mendoza. The justification here should be the limitation of vires—of the powers—of these bodies. That is the way to justify clause 1 for me. The justification is not, “Get behind Government policy” or “Do not make these moral or political statements”: it is vires and powers. We can come back to that in further questions.
Felicity Buchan
Q
Rahima Mahmut: All my life, I have been fighting for freedom of speech and the freedom to make decisions. I do believe that foreign policy is not necessarily fair. For example, since 2016 and especially since 2017, mass arrests have started in my country. The UN said that up to 1 million people are in concentration camps but we believe that it could be up to 3 million people. I have lost contact entirely with family members since January 2017. In April, I learned that my sister had died in March—one month earlier—and I was told not to contact anyone in case I put their life in danger. I learned that my brother was in a camp for over two years and released because he was almost dying.
I have been campaigning in Parliament, and it has passed a motion declaring that genocide is happening. The independent UK Uyghur tribunal, led by Sir Geoffrey Nice KC, also found evidence of genocide based on the forced sterilisation, forced abortion, and prevention of future births of Uyghur children. There is also forced labour, family separation, children being taken away, cultural destruction, and so on. We have a huge amount of evidence gathered by the Uyghur tribunal, yet we have not really seen the UK take active policy decisions on trade or anything else.
It really pains me to see this kind of inactivity from the politicians because of the UK’s economic dependency on China and its diplomatic relationship. Our Foreign Secretary visited China only last week, after which I penned two op-eds: one was in The Spectator, in which I said that this is a betrayal of the Uyghurs; the other was in The Guardian. I recommend that you read them if you have time. I laid out the reasons why this is so unfair and why it just does not really align with the human rights that we believe the UK upholds.
In this kind of situation, I do believe that local authorities and other bodies should have those powers. We campaign, for example, about solar panels, an area that is heavily tainted by Uyghur slave labour. We know that local authorities make decisions on buying those products, and we believe that if we can convince the local authorities, they can decide not to buy solar panels tainted by slave labour.
Felicity Buchan
Q
Rahima Mahmut: No. For example, we are also campaigning against Hikvision cameras, which are made in China. Hikvision is one of the biggest CCTV companies, and its cameras cover internment camps and the entire Uyghur region. I always call this genocide against my people the first high-tech genocide. We are campaigning against Hikvision because it is complicit in this genocide, but we cannot necessarily prove that Hikvision cameras are made using slave labour. If the Government do not recognise this as genocide, then local governments and public bodies cannot make the decision to boycott or to stop such products coming into this country.
Felicity Buchan
There will be the ability to exclude on modern slavery and labour misconduct grounds under the Procurement Bill and in this Bill, but perhaps, in the interest of time, I should allow colleagues to come in.
Wayne David (Caerphilly) (Lab)
Q
Rahima Mahmut: First, thank you for that question. I thank the Jewish community from the bottom of my heart for the support we have received—Stop Uyghur Genocide received its first fund from the Pears Foundation. As people who have experienced this absolute horror in the past, the Jewish community can relate and understand the pain.
When it comes to the legislation, I am not a lawyer. I only look at whether a piece of legislation will benefit my community. So far, from my own understanding of this Bill, I do not see that it will have any kind of positive outcome. As I have explained, this is because of the power that China has due to the economic dependency that this country and many others have on it, which is why we could not really mobilise Governments to recognise it and take any meaningful action. Therefore, I strongly oppose this Bill. This is not just me; I represent the Uyghur community, which also opposes this Bill. We do not want this Bill to one day prevent our campaign from being successful.
The Chair
We will now hear from Stephen Cragg KC. We have until 3 pm for this session. Would the witness introduce himself?
Stephen Cragg: I am Stephen Cragg KC. I am a barrister at Doughty Street Chambers specialising in public and human rights law.
Felicity Buchan
Q
Stephen Cragg: First of all, it is unclear whether that is the case or not.
That is something which needs to be clarified—if that is the intention, it should be spelt out. The concern is that the right to freedom of speech of councillors speaking about matters in council chambers, for example, might be affected—that is unclear from the Bill at the moment. In article 10, the right to freedom of speech also involves the right of the public to receive information. It is interesting that local councillors, for example, might feel restrictions on saying things in debates in council chambers because they are afraid of falling foul of some of the provisions in this Bill. Michael Gove said in a statement that it does not apply to individuals—on the face of it, I can see that argument, but I think it is very unclear and needs to be clarified if that is the intention.
Felicity Buchan
Q
Stephen Cragg: I recognise that these are the kinds of powers regulatory authorities often have. There is concern about the fact that there are also judicial and quasi-judicial review remedies in the measure and about the effects of the regulatory provisions, which involve possibly preventing someone from making a statement in advance. There is also concern about the information notices provision in clause 7. I was in the room when the question about legal professional privilege was asked. I cannot see anything in clause 7(8) which provides any protection for legal professional privilege. It was also said that it gives people the power to provide that information, but that is not right either because clause 7 is all about complying with a notice—people do not have any discretion as to whether they disclose the information or not. There are concerns about the provisions in clauses 6 to 10.
I also note that there is no clue at all about the kind of monetary penalty that might be imposed as well—whether it will be something like the Information Commissioner has, which can go to hundreds of thousands of pounds, if it will be £100 or if it will be a rap on the knuckles and being told, “Don’t do it again.” All that needs to be clarified, and it is not clear at the moment.
Felicity Buchan
Q
Stephen Cragg: In my view, those specific words are there in clause 7(8):
“A person providing information in compliance with an information notice does not breach any obligation of confidence owed by the person in respect of the information, or any other restriction on the disclosure of information (however imposed).”
I do not see how you can get much clearer than that.
Felicity Buchan
Q
Stephen Cragg: If that is the intention—that legal professional privilege is excluded—it needs to say that.
Felicity Buchan
Q
Professor Tomkins: Yes, absolutely. I agree strongly that the Bill should have UK-wide extent and application and should apply to all public bodies throughout the United Kingdom, including devolved Administrations—arguably, perhaps especially devolved Administrations. The Bill has two fundamentally important policy motivations. One is with regard to community cohesion. Community cohesion is a responsibility of the United Kingdom Government and, indeed, of the United Kingdom Parliament throughout the whole of the United Kingdom. The other is of course to safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the United Kingdom Government, accountable as it is to the United Kingdom Parliament. The devolution settlement sits on top of those constitutional fundamentals and is not an exception to those constitutional fundamentals. For all those reasons, it is vital that the Bill applies and extends to all four nations of the United Kingdom.
Felicity Buchan
Andrew or Francis, do you want to come in?
Professor Tettenborn: I certainly back what Adam Tomkins has said. If we put the boot on the other foot, imagine that we are negotiating with the State Department over something very delicate, and the answer comes back from the State Department, “We will give you support—we will put pressure on this country—but we can’t answer for California or Colorado, who might have a different official view.” I do not think we would be very happy about that. Again, we could ask the German Government and they could say, “We are of this view, but the Government of Bavaria or Baden-Württemberg think differently.” We owe it to our foreign partners to speak with one voice, in the same way as we might expect them to.
Francis Hoar: In principle, I agree with that. I do have concerns about the Bill on which I shall extend later, but in principle yes, the United Kingdom should speak with one voice. I think it is fair for Her Majesty’s Government to deprecate and to attempt to restrict, within their powers and within the devolutionary settlement, as I think they are, the attempt by the Scottish Government in particular to have a separate and independent foreign policy through having missions abroad and making statements and, perhaps, investment decisions.
It is also appropriate to remember that there used to be a convention that when speaking abroad, Her Majesty’s Opposition would not contradict the foreign policy of the day. That is not to say that they did not, as they of course did, object to foreign policy in Parliament, when legislation was proposed and also in the sense of Government decisions. That was something that Clement Attlee and others were extremely keen on furthering. I regret that in the past 20 years in particular, and perhaps particularly since 2016, that has not been something with which Her Majesty’s Opposition have complied. They frequently negotiated with representatives of foreign states in the Brexit process, which I think is regrettable. That goes well beyond the scope of the Bill, but I think the policy objective of ensuring that the UK speaks with one voice is an appropriate one.
Felicity Buchan
Q
Professor Tettenborn: I am probably in the firing line here as I come from a university.
Felicity Buchan
Yes, absolutely.
Professor Tettenborn: I think it probably should, but perhaps for reasons different from those for other public authorities. The issue of free speech in universities is very much an issue of free speech for individual scholars within those universities. It seems to me rather inappropriate that a university should have a corporate view on a particular matter of foreign policy. It should, if you like, hold the ring between individual academics. So when it comes to universities I think there is a specific justification.
When it comes to public authorities, I simply go back to the idea that public authorities should regard it as off limits—ultra vires, if you like—to have their own foreign policy and their own views on what individual foreign Governments should be doing. That is particularly because, as was mentioned earlier, if you have, for example, large numbers of people from India and Pakistan in a particular local authority area, there is nothing that is going to make dissension worse than a public authority that is seen to favour Pakistan, say, over Kashmir.
Felicity Buchan
Francis or Adam, do you want to come in on that point?
Francis Hoar: Maybe I will let Adam conclude on this, and I will be much more brief. I am ambivalent about universities, to be honest, for the reasons that Dr Harris, whose evidence I heard, set out. I appreciate your point, Minister, which is that the legislation applies only when the university is acting as a public body. I appreciate that distinction, which can perhaps be fine. That is the kind of issue that might be teased out in the courts, but I suppose that is part of the nature of such a Bill. I sympathise and agree, to a certain extent, with Professor Tettenborn’s point about it not really being appropriate for universities to have corporate identities, but whether that should be in public legislation is a different matter.
Professor Tomkins: I agree with what Andrew Tettenborn just said. I should probably have said at the beginning that I am also a member of the Free Speech Union; indeed, I am on its Scotland advisory panel. I do not like disagreeing with Bryn Harris, but I am afraid I disagree with quite a lot of what he had to say about the Bill this afternoon, not only with regard to the universities question, but with regard to clause 4 more generally.
In the law of the United Kingdom, we do not have a single definition of the public sector or the public sphere, but we do have a very workable template that has been used for more than 20 years now in the Human Rights Act, which is what the Bill validly seeks to borrow from. That brings within its scope hybrid authorities such as universities when they are acting in a public capacity. It is a way of understanding the scope of the public sphere or public sector that has not caused particularly difficult problems in litigation at the High Court or at a higher level in the more than 20 years during which the Human Rights Act has been in force. That is not to say that it has not been litigated at all—of course it has—but it has not caused particular problems.
I think it eminently sensible that the Bill seeks to use that template in this context. I am very relaxed about universities and other public authorities being captured within the scope of the Bill in the same way as local authorities and devolved Administrations. I do not have any issues or concerns in that regard.
Felicity Buchan
Q
Professor Tomkins: Absolutely, yes.
Felicity Buchan
Q
Professor Tomkins: Perhaps I can address that question, Minister; I have done quite a lot of work on how the Bill would compare with the position in France and in a number of the states of the United States.
The Bill is very modest indeed in comparison with what has been happening in France and in the United States. French authorities, for example, are seeking to criminalise various forms of BDS activity, which the Bill emphatically does not. In the United States, where I think the states that have enacted anti-BDS legislation are now in the majority, that legislation varies from state to state but its general tenor is that public authorities are prevented by force of law from contracting at all with American companies unless those American companies declare that they do not boycott either Israel or the occupied territories. Again, that is going much further than the Bill will go in the UK. When understood comparatively in terms of the way in which our closest friends and allies are taking legal action to clamp down on very counterproductive and unhelpful BDS campaigns, the Bill is very modest, but it is not without importance and is not ineffective.
It is worth remembering—I listened to the exchanges with other witnesses earlier—that of the boycott campaigns that have been targeted against a foreign power by public authorities in the United Kingdom, every single one has been targeted at Israel, so analogies with what happened 30 years ago or more with regard to South Africa are perhaps a little inapt. It is true that the Bill is of general application and is not specifically about Israel, but the facts on the ground are that, as matters stand, every single one of the publicly funded anti-BDS campaigns in the United Kingdom has been targeted at Israel.
The Bill is very important and I unqualifiedly support it, but in comparison with what our closest friends and allies are doing elsewhere in the world, it is a rather modest measure. It could—some would say should—have gone a lot further in clamping down on BDS activities, which have the effect not only of undermining the cohesion of UK foreign policy, but of significantly undermining community relations.
Felicity Buchan
Q
Professor Tettenborn: I might have something to say about ECHR article 10. I am not as much of a human rights expert as the gentleman from Doughty Street Chambers—I give way to him pretty willingly—but I do not think that there is a strong article 10 right in public authorities speaking as public authorities. Public authorities are normally the people who get sued for breaking article 10, rather than the people who sue because somebody has stopped them saying what they want. As I read the Bill, it is very carefully drafted to say that if a councillor or a Scottish Minister says, “I think this is a rotten piece of legislation and I think Israel, in any decent society, ought to be made a pariah,” and makes it clear that they are speaking in a private capacity and not officially on behalf of the council, they are in no danger at all.
Francis Hoar: I defer to Professor Tomkins on the international comparisons. In respect of article 10 of the ECHR, there are three stages: first, whether it is engaged; secondly, whether the Bill contravenes article 10, paragraph 1, which concerns whether or not it is a legally enforceable prohibition; and, thirdly, whether the Bill is proportionate.
In some respects, in my view, the Bill does not engage article 10. I do not believe that the power to make investment decisions is engaged by that. On the other hand, statements clearly are. Clearly, the Bill in itself would prohibit the conduct, and it is sufficiently clear for it to be very unlikely that the courts would be forced to interpret the legislation in such a way that was compatible, even if it strained the usual interpretative norms.
So article 10, paragraph 1 does not apply; the question is whether the Bill is proportionate. Dr Harris referred to one recent Strasbourg court decision, Baldassi, which concerned a non-public body. In that case, it was found that prohibitions by the French state on that non-public body were disproportionate. But in the earlier case of Willem v. France, which concerned a mayor, there was no violation. In other words, the criminalisation—the legislation went much further, as Professor Tomkins said, even back in 2009—was found to be proportionate because of the community cohesion point.
That said, I agree with Dr Harris about clause 4. I do not see the need for it. The mischief the Bill is designed to address is divestment, procurement decisions and so on. I do not see why it is necessary to prohibit councils from saying that they would like to divest if they were lawfully able to do so, and even that they intend to do so. As Dr Harris said, if a council passes a resolution that has effect, that is ultra vires. I agree, as I said at the outset, that it is desirable that the United Kingdom speaks with one voice and that public bodies that do not have foreign policy powers do not contravene that, but I do not see the necessity of clause 4.
I do not think the clause would necessarily be disproportionate. The Willem v. France decision in the Strasbourg court suggests that it would be found to be proportionate, and in any event the background fact speaks against disproportionality—if it were to come to a challenge, the background fact is that this is a public body that has no powers in respect of foreign policy—but I do not see the need for clause 4, and I would advise the House to reject it.
Felicity Buchan
Q
Francis Hoar: Yes, of course they can, but as Professor Tettenborn said, that does not stop councillors making them on the campaign stump, and it does not stop the Mayor making them in a personal capacity. I am afraid I do not find that a convincing argument at all.
Alex Norris
Q
Francis Hoar: I have answered that.
The Chair
We will now hear from Andrew Whitley, chair of the Balfour Project. We have until 4 pm. Would you introduce yourself for the record, Mr Whitley?
Andrew Whitley: My name is Andrew Whitley. I am the chair of the Balfour Project, a Scottish registered charity that advocates for peace, justice and equal rights in Israel and Palestine. We have a particular focus on Britain’s responsibility, historically and currently, for the situation Israel and Palestine. I myself have followed the situation for almost 40 years now, in different professional capacities, including living in the region—in Gaza and Jerusalem—for seven years.
Felicity Buchan
Q
Andrew Whitley: Yes, that is the case, but I think it is difficult to draw a distinction between divestment in certain areas and not others. It is possible to have divestment from Russia over its invasion of Ukraine, for example, and we can refer to aspects of boycotts and divestments that go back to the time of the slave trade. There is a long and distinguished record of being able to use these tools. I am not saying that our organisation advocates for BDS to be applied in this particular case, but we do advocate for the right of others to speak and to say that this is a legitimate tool. What concerns us as an organisation is that this Bill singles out Israel and the Palestinian territories as the sole area in which it applies, and our concern relates in particular to the conflation of Israel proper with the occupied territories in the Golan Heights, the west bank, Gaza and east Jerusalem.
Felicity Buchan
Q
Andrew Whitley: I would not advocate in favour of BDS against Israel per se. I would argue that BDS is a legitimate tool to make a distinction between Israel and the occupied territories. I think that is an important distinction that always has to be maintained. In our view, this is the central flaw in the way the Bill is drafted.
Felicity Buchan
Q
Andrew Whitley: I am not sure that I agree that it creates community friction in this country. I recognise fully that there are those who are concerned about anything that could lead to antisemitism, and that is a scourge that must be utterly condemned, but I am not sure that advocating for BDS does that. It is a legitimate tool of non-violent action to influence a Government’s behaviour when they are committing illegal acts, and the occupation of a foreign country or a foreign territory is an illegal act, whether it is in Ukraine or Palestine.
Felicity Buchan
Q
Andrew Whitley: I would not advocate for boycotts against Israel.
Wayne David
Q
Andrew Whitley: Human rights are universal, and they need to be applied even-handedly and in a systematic fashion; there can be no quarrel or disagreement over that. Any attempt to try to make distinctions over how human rights should apply in one territory or another undermines the authority of those who are attempting to enforce them, and it makes a mockery of the application of human rights if they are applied selectively. I believe it is the responsibility of all citizens, as well as public bodies, to be able to apply ethical, moral human rights considerations in their decisions, and those can apply to political matters and they can apply to other matters. Human rights also cover the provision of shelter, the provision of water supplies or adequate education; these are all basic fundamental human rights. I think it is the responsibility of all bodies in this country to take human rights considerations into account and to apply them in a consistent manner.
The Chair
We have until 4.30 pm for this session. Could the witnesses start by introducing themselves for the record?
Mark Beacon: My name is Mark Beacon. I am an international officer at Unison. Unison is the largest trade union in the UK, representing 1.3 million workers working in public services. Although our members are UK-based, we take a very keen interest in and recognise the importance and value of working collectively internationally to uphold human rights and workers’ rights. That is one of the key reasons why the Bill is of interest to us.
Rozanne Foyer: My name is Rozanne Foyer. I am general secretary of the Scottish Trades Union Congress. STUC is Scotland’s federation for trade unions. We have over 600,000 members in Scotland.
Felicity Buchan
Q
Mark Beacon: Unison has consistently advocated for a two-state solution—for a viable Palestinian state alongside Israel. We support boycott, divestment and sanctions as a method to put pressure on the Israeli Government to bring about peace and a viable two-state solution. In terms of the work we are talking about here around pension fund engagement and investment, we have been calling for the local government pension scheme to begin the process of divestment from companies on the United Nations list of business enterprises involved in and with the illegal settlements, and to begin the process of time-limited engagement with other companies that are contributing to violations of human rights. Of course, our focus is very much on the Occupied Palestinian Territories and upholding human rights and international law within that context.
Felicity Buchan
Q
Mark Beacon: If you look specifically at our work on this, it is very much targeted at the Occupied Palestinian Territories. We are focusing on companies that are contributing to a grave violation of international law and breach of the Geneva conventions. It is also worth adding that BDS is not something we have used exclusively in the context of Palestine and the Occupied Palestinian Territories. You can look to examples such Myanmar and Western Sahara and, historically, countries such as South Africa. It has played a big role. Trade unions throughout the world use it. When it comes to boycott, divestment and sanctions—mainly divestment in this case—what we do is listen to the calls of our trade union partners around the world and ensure that what we are doing is reflecting their demands in these areas.
Felicity Buchan
Q
Rozanne Foyer: The STUC has a long-standing policy of support for a peaceful two-state solution to the Israel-Palestine conflict. We also have, since 2009, supported BDS as a policy and a campaigning method. Basically that has been part of our international campaigning for decades, not just in relation to Israel. Fifty years ago we supported Rolls-Royce workers who refused to repair the aeroplane engine—[Inaudible.]
The Chair
Rozanne, I do apologise. We are struggling to hear you. Do you have a microphone available that you could plug in?
Rozanne Foyer: No, I do not.
The Chair
That is a bit better.
Rozanne Foyer: Through the 1980s, we played a key role in the anti-apartheid movement. Boycott, divestment and sanctions also played a key role in that movement. The trade union movement in Scotland was quite instrumental in encouraging local authorities such as Strathclyde and Glasgow City to take steps to support Nelson Mandela. That was at a time when he was still considered a terrorist by the UK Government. I just want to make the point that, generally, support of that type of activity is something that our movement has been involved in.
In 2009, we sent a factfinding delegation to Palestine. It talked to all parties—Israeli trade unionists and Palestinian trade unionists—and produced a report. On the back of that report, we agreed a policy of boycott, divestments and sanctions against the Israeli state. The aim was to create pressure to end Israel’s illegal occupation and establishment of settlements classed as illegal under international law. It was also to campaign against the violation of the human rights of Palestinians by the Israeli state as defined by the United Nations. We worked with our affiliates to support BDS strategy and we produced guidance on it in 2019. Our BDS policy is fully supported by the Palestinian General Federation of Trade Unions.
In 2022, the STUC supported a delegation from Dundee Trades Council to Palestine, which met again with both Palestinian and Israeli trade unionists. Following the reports received from that delegation about the situation on the ground for workers, and the continued human rights violations of Palestinian workers, the STUC Congress reaffirmed its policy to support BDS in 2023. We are not formally affiliated with any BDS movement, as you described it, and we do not wish our support for BDS to be interpreted as blanket support for any of the policies or views of other bodies or organisations that might identify with the wider BDS movement.
Felicity Buchan
Q
Mark Beacon: We do not see this as an issue about foreign policy or local authorities having a jurisdiction over any form of foreign policy. What it is about is public bodies upholding internationally recognised norms regarding human rights, labour rights and international law.
Felicity Buchan
Q
Mark Beacon: If you look at the situation now and how it has eroded and if you look at the plans of the current Government—the coalition agreement, for example, has a section in it that focuses on annexation of huge swathes of the west bank—Palestinian society is in a very difficult position at the moment, because the prospects for peace and a viable two-state solution sadly seem to be diminishing. We hope that international pressure and voices from the trade union movement and other civil society organisations will raise that up the international agenda and bring about more realistic prospects of a viable two-state solution.
Felicity Buchan
Q
Mark Beacon: Of course, it takes many small steps. In local authorities, we are talking generally about a response to the requests or concerns of members of pension schemes. Local authorities and pension committees take on those legitimate concerns of members on how investments are made, and act on those. A single local authority will of course not make a massive difference, but if that is taking place across the UK and internationally, it will add to pressure and encourage the UK Government to take a stronger position on some of the issues.
The Chair
Five Members have indicated that they would like to ask questions, and we need to conclude by 4.30 pm—just so everyone is aware.
Economic Activity of Public Bodies (Overseas Matters) Bill (Third sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 7th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 7 September 2023 - (7 Sep 2023)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Q
Jonathan Turner: Yes, I would. I would go further and say that it has the beneficial effect of securing the UK’s compliance with international law, particularly with World Trade Organisation agreements, which impose restrictions on the UK central Government and a very wide range of public bodies. The Bill and its enforcement will ensure that activities or decisions of subordinate public authorities will not put the UK in breach of, particularly, the Government procurement agreement, which is part of the World Trade Organisation collection of agreements.
Felicity Buchan
Steven?
Steven Barrett: Yes, although I hesitate to reply on that because complying with international law is a political position. What I would perhaps like to make clear and explain to the Committee is our constitution and how we work. It is really important that this is understood. It was clarified recently by the Supreme Court, so we are back to now understanding the constitution, and we have a unique relationship with international law. If you wanted, we could all go to the British Museum and look at some 2,500-year-old international law—in fact, it is older than that. There are great masses of it. Absolutely no legal jurisdiction in the world makes all of it binding on that jurisdiction.
If you take a European-style constitution after the war, it will use a constitutional court to choose which bits of international law it wants and does not want. It makes it the job of its judges and courts to do that. When we were in some constitutional confusion after coming out of the EU, I wondered whether that was the system that we would use, but what then happened was quite clear.
You may all remember the Northern Ireland case about the impacts of the protocol on the Acts of Union: it went to the courts, and the courts very clearly said, “No, this is not for us.” We are clear that we do not have a continental-style system in which a court can break international law or exit it for us. We have a system where you deal with it. This Parliament deals with international law, and we draw a line that we call incorporation.
Incorporated international law is binding upon us. You will all remember Miller 1 and the fuss that the Government had where they pretended that they could get out of the EU without passing an Act. No! The part of international law that made up the EU was incorporated international law. To get rid of incorporated international law, they had to use an Act of Parliament. If it were unincorporated, that would be entirely different.
That is the line that we draw. It is really important that people start remembering it. We have not really needed to know about it since the ’60s. In his speech clarifying this, Lord Reed, the President of the Supreme Court, was very forgiving: he just called it a misunderstanding that had arisen. I like to call it a confusion, because nobody should feel guilty about this: these are bits of the constitution that we have not had to wield for decades. How was anybody supposed to know instantaneously that when we left the EU, this was what would happen? But that is what happened.
It is the role of Parliament, not Government, to control the operation of international law, and you do that through Acts of Parliament. This Bill is lawful—of course it is—because it is simply a mechanism for doing that. In his most recent note, I note that Mr Hermer concedes that. The only relevant part to come out of a lawyer’s lips is whether you can or cannot do something; whether you should or should not is entirely for you. He says that you can, and I think that that is enough from any lawyer.
The Chair
Given the constraints on time, I will bring in other members of the Committee. If there is time at the end, I will bring the Minister back in.
Felicity Buchan
Q
Jonathan Turner: Most of his advice, I think, is wrong. I have set out detailed reasons why his opinion that was published and circulated at the time of Second Reading was wrong, but I would like to take the opportunity to address the note that he sent round last night, because I am afraid to say that it is still wrong.
One of the points that he made before claimed that this Bill would effect a profound change in the autonomy of local government. That is just not correct: there are existing, very substantial restraints on the autonomy of local government when it comes to procurement and investment. Some of those will be replaced by the Bill and some will continue, but it is simply not the case that this makes a sudden and enormous change. He has accepted that section 17 of the Local Government Act 1998 effected a substantial restriction on local government bodies, but he has ignored—even though I have sent him two emails pointing this out—the EU legislation, which effected a very substantial restriction.
He goes on to say that the Local Government Act applied only to local government bodies, not to other public authorities, but the EU legislation applies to a very broad range of public authorities. The regulations implementing the EU directives in England and Wales and Northern Ireland are to be repealed by the Procurement Bill, which is in its final stages. It does not affect the regulations implementing the EU directives in Scotland, which will apparently continue in force; the memorandum from the Scottish Government to the Scottish Parliament suggests that that will continue to be the case.
The position is that this Bill effectively replaces that EU legislation as far as England and Wales and Northern Ireland are concerned, within its terms, in relation to territorial matters. What the Bill really does—the most important aspect of the Bill—is transfer a matter that was regulated by EU law into a matter that is regulated by national law, and set out the national law governing this particular matter. It is part of the Brexit agenda of, if you like, taking back control: you may agree or disagree with the decision that the British people made, but it was made. A major part of the function of this Bill is to replace pre-existing EU-based legislation with UK- based legislation, together with the Procurement Bill.
The Chair
To the other two witnesses, it might be helpful in terms of our time constraint if you could initially confirm whether you are happy with the evidence already given, and if not, please say so. Secondly, could you raise any additional points that you do not think have come out in the first response? I hope that is clear.
Dave Timms: I agree entirely with Yasmine’s comments. Hopefully we will get to talk specifically about the environmental implications, but I would add to her answer the pernicious way clause 1 is constructed and the impact that will have on civil society organisations going about their reasonable activities to try to create environmental or social change. We have heard a lot of the witnesses say that it does not have gagging implications or free speech implications, but the actions of civil society organisations and members of those decision makers are drawn in by the nature of clause 1 and subsection (7), which talks about “any person seeking to persuade the decision-maker”.
This is the state impinging on the activities of civil society organisations that are trying to achieve meaningful social change and trying to ensure that their money, their local authority or university is not complicit in driving destructive human rights or environmental activity. In that sense, this is a direct attack on the ability of civil society to go about the activities we would consider to be legitimate.
Peter Frankental: I totally agree with Yasmine and David. Public procurement in the UK, according to the OECD, accounts for 14% of GDP. That is enormous potential leverage to incentivise ethical business. That leverage is largely being lost because of the disincentives that Yasmine referred to. Let me give you one example of why the disincentive is so great. If a public body—say, an NHS trust—were to decide not to tender with a company in Malaysia, or a contractor in the UK that sources from Malaysia, and source rubber gloves from a factory that had been linked to human rights abuses, that would implicate the state of Malaysia. Under international law, states have a duty to protect, and that means holding companies accountable. If a company is involved in human rights violations or labour rights violations, the state has to some extent failed in its duty to protect, so disapproval of foreign state conduct is invoked. I do not think that the public bodies will want to go anywhere near giving effect to their human rights due diligence findings, because the risk and cost to them would be too great.
Felicity Buchan
Q
Yasmine Ahmed: As a matter of principle and policy at Human Rights Watch, we do not take a position on BDS. What we do say very clearly is that individuals, and whoever wants to, have the right to engage in BDS. It is part of their right to freedom of expression, association and assembly.
Dave Timms: For us, the position is exactly the same.
Peter Frankental: We do not take a view on BDS either, but we support the right of people to advocate for BDS. Can I just expand on that a little bit? More widely, we see the situation where human rights advocates and human rights defenders all over the world are delegitimised and stigmatised because of their human rights advocacy. All kinds of pretexts are given for this, such as offending public morals, being disloyal to the state and—as in this particular case, with this legislation—racism and antisemitism.
There is no reason in principle why any human rights advocate should not advocate for the human rights of Palestinians or criticise the human rights record of the state of Israel, and they should not be tarred with the brush of racism or antisemitism. That is a very dangerous road to be going by. If that approach is taken, will human rights advocates who draw attention to human rights violations of the Rohingya in Myanmar and the track record of the Government of Myanmar be accused of being anti-Buddhist? Will those who criticise the human rights record of the Indian Government with regard to the treatment of minorities be accused of being anti-Hindu? What of those who criticise human rights violations in the Gulf states? Anyone who advocates for BDS, which is a peaceful, non-violent means of achieving change and holding Israel accountable for human rights violations—Israel has enjoyed a considerable degree of impunity over the years—should be able to do that without being tarred with the brush of racism or antisemitism.
Felicity Buchan
Q
The Chair
It is an agree/disagree question.
Dave Timms: I am afraid that I completely disagree with the assertion that there is any protection whatsoever for fossil-fuel divestment campaigns. We are extremely concerned about the chilling effect that the Bill could have on those. You have said that fossil fuels are not specifically mentioned, but I am afraid that the Minister does not have the ability to say what is excluded because of the construction of the first clause, which mentions
“a reasonable observer of the decision-making process”.
In fact, the Department’s own delegated powers memorandum, in terms of contracting with suppliers, talks about being “affiliated with certain countries” and divestments from “organisations” that are affiliated “with certain countries.” So if we are talking about divestment of fossil fuels from, say, Saudi Aramco, Equinor, Petrobras, Gazprom or other companies that are highly associated with a foreign Government, we think that will be brought very quickly into the remit of the legislation.
Also, as I said before, because it bites on the way people go about campaigning, and all the statements made during that, you will often see arguments for fossil fuel divestments being couched in terms of getting off fossil fuels because of the damage of climate change, but also because of the record of particular regimes. Those decisions could very quickly be blocked by this legislation. So I see no reassurance whatsoever that it would not have a significant impact on fossil-fuel divestment.
Nor do we take any reassurance at all from the exemption around environmental misconduct. It applies only to illegal environmental harm, yet so much environmentally destructive activity is conducted lawfully. We can look at something like the due diligence discussions that happened during the Environment Act, where the limitations on reporting on illegal deforestation were revealed because so much of the deforestation due to soy in somewhere like Brazil happens entirely lawfully. Or you can take something like Indonesian palm oil, where the legal status of land is extremely complicated and it becomes almost impossible to determine what land conversion has happened legally or illegally. How can a local authority or a public body possibly be expected to navigate that kind of complexity? What they will do is say that this legislation blocks them. So I am afraid that I do not accept your point.
The Chair
Q
Richard Hermer: Good afternoon, Sir George, and members of the Committee. My name is Richard Hermer. I am a barrister, as you have said, at Matrix Chambers. My areas of expertise most relevant to this Committee are in public law and international law, including international humanitarian law. I advise and represent a wide range of individuals, companies and, indeed, Governments, and I lecture on those topics both here and abroad.
Felicity Buchan
Q
Richard Hermer: Good afternoon, Minister. Of course, law imposes on all decision makers—be it local authorities or public bodies—a range of restrictions through law on their decisions, whether it is a purchasing decision or any other type of decision. That is what the legal framework does. I have identified in the two written opinions why aspects of this Bill are unprecedented in respect of its impact on human rights and international law. I agree with you as a matter of generality, but I disagree with you, Minister, as to this particular Bill.
The Chair
I am not going to bring the Minister back in. We have only 15 minutes for this session.
The Chair
Q
Melanie Phillips: I am Melanie Phillips. I am a British journalist and I spend much of my time these days living in Israel.
Felicity Buchan
Q
Melanie Phillips: Many people, pretty understandably, draw a distinction between criticism of Israel and antisemitism. However, my view is that what we are all talking about when we talk about concerns over the way Israel is treated in public discourse is not criticism but a unique campaign of delegitimisation and demonisation.
Now, it should not follow that, even if you demonise the state of Israel, British Jews get it in the neck. But it is a fact—it is on record—that every time the public prints are full of not just criticism of Israel’s behaviour but a presentation of Israel in which it is a unique human rights abuser in the region, attacks on British Jews, both verbal and physical, go up. So there is in practice—whatever the reasons you may adduce—a complete connection between the two. In my view, that is not really surprising. For many people in this country and elsewhere, their understanding of Judaism, the Jewish people, Jewish history and the connections between all those things and the land of Israel is extremely limited. Many people do not understand how intimately Jewish identity—Jewish religious identity—is wrapped up with the land of Israel.
For all those reasons, a boycott movement that stigmatises Israel, singles it out for treatment afforded to no other country and identifies it, therefore, inescapably as a unique evil in the world must have an impact on the Jewish community.
Felicity Buchan
Q
Melanie Phillips: Yes. A statement of intent is clearly no more or less than that, but the evil of a statement of intent is that it is a statement of delegitimisation—a statement that Israel is uniquely evil, that it uniquely requires this kind of approach. Therefore, any Jewish person in Britain who supports Israel is deemed to be fair game, and any Jew is deemed to be fair game because people assume, rightly or wrongly, that they identify with Israel.
Steve McCabe (Birmingham, Selly Oak) (Lab)
Q
Melanie Phillips: I think there is no contradiction between the two. As you say, the Bill is the fulfilment of a manifesto commitment. The manifesto commitment is a broad one, and the Bill is a broad one, as you heard from your previous witnesses. There are exemptions of different kinds, and the particular exemption you are talking about, which singles out Israel, is done for a particular reason: in a Bill that deals generally with boycotts, there is one boycott that stands out as unique, which is the boycott movement against Israel. It has characteristics that do not apply to any other action taken against any other country, group or cause. In the view of the Government, and I agree with this view, it is a uniquely evil impulse, designed uniquely to destroy Israel as the Jewish state—as the Jewish homeland—and with malign potential repercussions on the Jewish community. Consequently, because it is a unique situation, it requires a specific exemption, as it is so bad that it cannot be ever thought that it could ever happen.
Economic Activity of Public Bodies (Overseas Matters) Bill (Fourth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 12th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 12 September 2023 - (12 Sep 2023)
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to see you in the Chair, Sir George, and to speak to amendment 3, which stands in my name.
We have now moved to the short but important process of line-by-line scrutiny of the Bill, which is itself short but important, with just 17 clauses and a schedule. In the high-quality Second Reading debate, we saw the significant strength of feeling among Members across the House. Frankly, there was not an even party political divide, which always makes things a bit more interesting. I suspect that colleagues’ mailbags, like mine, have been full of strong views from their constituents.
On Second Reading, the Opposition tabled a reasoned amendment setting out our significant concerns about the Bill, which very much start with clause 1. It is a long-standing Opposition position that we do not support boycott, divestment and sanctions-type activity against the state of Israel. As my hon. Friend the Member for Caerphilly said on Thursday, we are implacably imposed to it. I cannot improve upon that sentiment, which is also the view of the Government. It should not have been hard, if that was what the Government wanted, to build consensus around a proportionate set of regulations that would tackle the issue. Instead, clause 1 and the Bill generally are needlessly broad, with sweeping powers and far-reaching effects. Whether consciously or not, that has created an undesirable degree of division.
The Opposition do not think it wrong, in itself, for public bodies to take ethical investment and procurement decisions, given that there is a long history of councils, universities and others taking a stance in defence of freedom and human rights. After all, it is local ratepayers’ money, and it is reasonable for them to want a say in how to spend or invest it. Similarly, the money in a pension fund belongs not to the Secretary of State but to its members, so it is reasonable for members of funds, through their trustees, to wish to express their views on how the money is invested. We know that that is also the Government’s view, because they have carved out a wide range of exceptions in the schedule. It is clearly not in debate that there ought to be a degree of local say on such activity.
However, it is important to say, at the start of our line-by-line scrutiny, that there is a significant difference between legitimate criticism of a foreign state’s Government and what some have sought to do in recent years. There are those who have sought to target Israel alone, hold it to different standards than others and create hostility towards Jewish people in the UK. That is completely wrong, and we fully support efforts to tackle antisemitism in this country. However, this solution is not sufficient. In its unamended form, clause 1 will go far beyond what we are seeking to resolve and will create a series of problems along the way.
My amendment 3 seeks to clarify the ambiguous wording that a public body may not have regard to a “territorial consideration” when making procurement and investment decisions. As the then shadow Secretary of State—my hon. Friend the Member for Wigan (Lisa Nandy)—and I asked on Second Reading, is that supposed to mean that public bodies may refuse goods from a nation state such as China because of a general disregard for human rights, but may not refuse cotton goods from a territory such as Xinjiang state because of concerns about genocide of the Uyghur population? Or does it mean, as I suspect it may, that all actions of all foreign Governments are beyond the scope of local decision makers unless excepted in the schedule? Perhaps it is illustrative of where we are in the process of reviewing the Bill that that remains in doubt. We have seen doubt in the written evidence, and obviously doubt was felt at Second Reading, too. We need greater clarity in the Bill.
My amendment 3 is a probing amendment. I will not seek to divide the Committee on it, but I hope that it will provide an opportunity for the Minister to give clarity. I think we know that the Government mean that it is not territory-only boycotts that are out of scope, but rather that all boycott-type activity, where it disapproves of foreign conduct, is out of scope. I hope to hear that from the Minister.
I turn to the amendments tabled by the hon. Member for Airdrie and Shotts. My amendment 3 would have the same effect as her amendment 23 and is similar to amendment 22, so the same arguments stand.
I am interested to hear what the Minister has to say about amendment 31. It relates to the important debates we had in our evidence sessions about the reasonable observer test, which I struggled with a little. When I asked the witness panel about that, we heard slightly mixed evidence. I was willing to accept it as a term of art which would be well known to the courts and therefore not likely to provide another issue for litigation, but that point seems to be in doubt. I hope that the Minister can be clear about why this approach has been chosen.
I have no doubt that this legislation is heading straight for the courts. That was obvious from written and oral evidence and the Second Reading debate, and it will be obvious throughout our line-by-line discussions. Our debates in Committee will be germane to court proceedings as well, so it is important to have the greatest possible clarity in the Bill and in our discussions.
Finally, amendment 30 relates to a matter that I shall address in detail when we debate clause 4 stand part.
Conceptually, the Bill stands up and is easy enough to understand when we think about public bodies as entities in their own right. However, it swiftly starts to disintegrate when we consider that those entities are made up of a person or persons. I thought that there were some admirable logical gymnastics on that point from the Minister during our evidence sessions. She said that on one day a person might be a councillor, a trustee or a Mayor, and thus the decision maker, but that on another day, in another context, they might no longer be and would therefore not have their freedom of expression fettered. I am not sure that that is credible, but I suspect that the Minister will want to speak to that point, so I hope to hear some greater clarity on it.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
It is a pleasure to serve under your chairmanship, Sir George, with other hon. Members from all parties. The Bill is an important piece of legislation that has been brought to this place to fulfil a manifesto commitment to ensure that the UK speaks with one voice internationally, and to promote community cohesion within the United Kingdom. We have 17 clauses and one schedule to discuss in four sittings.
Amendments 22 and 23 would remove the references to “territorial consideration” from the Bill. I am not sure that this is what the hon. Member for Airdrie and Shotts intended, but the amendments would broaden the scope of the Bill. In its current form, the Bill will prohibit only territorial considerations
“that would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval of foreign state conduct”,
but the amendments would mean that when a public authority is making a procurement or investment decision, all considerations influenced by political or moral disapproval of foreign state conduct would be captured, not just territorial considerations—unless, of course, they were also excluded in the schedule.
The condition of “territorial consideration” in the ban means that the Bill only bans certain boycotts or divestments that “specifically or mainly” have regard to a country or territory. It does not currently, for example, prohibit public authorities that have an environmental policy for their procurement or investment decisions that is universal rather than country-specific. The amendments would arguably prohibit such policies, which is not the intention of the Bill.
Bob Blackman (Harrow East) (Con)
Does my hon. Friend accept that if the amendments are agreed to—obviously colleagues have proposed them on a sensible basis to probe the intention of the Bill—one of the risks, given that there are all sorts of territorial claims all over the world, is that countries that are occupying territories might be brought into scope if this change is made? The reality is that it should be the foreign policy of the Government that determines whether such decisions are taken, not individual authorities.
Felicity Buchan
I completely agree that foreign policy should be determined by Government. I would like to point out the definition of a territorial consideration in clause 1(3):
“A ‘territorial consideration’ is a consideration that relates specifically or mainly to a particular foreign territory.”
Foreign territory is defined in clause 1(5) as
“a country or territory outside the United Kingdom.”
For the avoidance of any doubt, “territorial” does not apply simply to territories; it also applies to countries.
Amendment 3 would exclude “territory” from the Bill’s definition of a foreign territory. In his evidence to the Committee, Richard Hermer KC raised a concern about the term “territorial consideration”, and I understand that the hon. Member for Nottingham North has tabled the amendment to address that concern. I have already explained the importance and purpose of territorial consideration, so I will not repeat it. I understand that Mr Hermer’s concern is that the terminology indicates that the clause applies only where there is a territorial dispute, but that is not the case. As Jonathan Turner noted in evidence to the Committee, there is nothing in this wording that suggests that the clause will apply only where there is a territorial dispute. If that is the reasoning behind the amendment, it is unnecessary.
Unless I am mistaken in my understanding of the reason for the amendment, it seems to be intended to attempt to reduce the scope of “territorial considerations” in the ban. In other words, it appears to intend for public authorities to be permitted to have regard to considerations relating to a territory when making an investment or procurement decision, even if that decision is influenced by the moral or political disapproval of foreign state conduct.
Chris Stephens (Glasgow South West) (SNP)
I am grateful to the Minister for giving way, but there are difficulties with the drafting of the clause, and one criticism is that it seeks to apply a subjective rather than an objective test. However, will she clarify the point made by the hon. Member for Nottingham North? The disapproval of foreign state conduct, which the Bill refers to, includes disapproval by individuals and by public organisations collectively, but it would also apply to individuals in such organisations. Will the Minister therefore outline the Government’s intent, because there is some confusion about the way the Bill is drafted?
Felicity Buchan
I will go on to address that, but to give the hon. Gentleman a simple answer now, if an individual is talking on behalf of a local authority, that is captured by the Bill. If a council leader makes a statement on behalf of the local authority, that is captured. If a councillor, or indeed a council leader, makes a statement but is not representing the local authority, that is not captured. The issue is whether it is “on behalf of”.
Chris Stephens
The Minister is being very generous in giving way. Let us be clear: a council leader or any councillor who is being interviewed by a journalist or on television would have to say, “This is my personal opinion. I am not speaking on behalf of the local authority,” and would have to hope that that was not edited out before the interview hit the newspapers or the television. There is a bit of difficulty around this issue. Given the Minister’s answer, I wonder whether the Government could go away and look at the clause, because I think they will find themselves in great difficulty on this issue.
Felicity Buchan
I was going to explain that, but I will give the condensed version: we will put it into the explanatory notes. We will give further clarity in those notes.
Amendment 32 could cause confusion about whether the ban may or may not be breached as a result of the political and moral disapproval of individuals who make decisions on behalf of a public authority. The drafting of the Bill clarifies the position: where an individual makes a decision on behalf of a public authority, that will be seen as the public authority’s decision, so the public authority will be subject to enforcement action, not the individual.
The Bill needs to be clear that decisions that involve disapproval by individuals who make a decision on behalf of a public authority are in scope; otherwise, it would bring into doubt situations such as a council voting for a local authority to conduct a boycott or indeed any decision taken by a group that makes decisions for a public authority, such as a board or committee. The ban would be ineffective and easy to circumvent if such decisions were not covered.
It might also be helpful if I explain how the ban affects individuals. Anyone acting in an individual capacity is not caught by the ban in clause 4 on making a statement of intent to boycott or divest, unless the individual is making that statement on behalf of the public authority. I gave the example of the councillor. I know that that has been a point of confusion for members of the Committee so, as I said, I will clarify the point in the Bill’s explanatory notes.
In addition, when an individual or groups of individuals make a decision that is caught by clause 1, or a statement on behalf of a public authority caught by clause 4, the individuals are not personally liable: the public authority is. The public authority would be the subject of any enforcement or court action. In evidence to the Committee, Dr Alan Mendoza confirmed that that position is laid out clearly in the legislation and that the European Court of Human Rights would agree. The Government remain strongly committed to the UK’s long and proud tradition of free speech and to article 10 of the European convention on human rights.
I hope that that reassures the Committee, especially in the light of the additions to the Bill’s explanatory notes. The scope of the Bill is strictly limited to the actions of public authorities, and only affects individuals when they make statements or take action on behalf of public authorities. Therefore, for the reasons that I have set out, I respectfully request that the amendments be withdrawn.
Ms Qaisar
Amendments 22, 31, 23 and 32, tabled by my hon. Friend the Member for Glasgow South West and me, include probing elements, as well as changes to the legislation, because on the face of it the Bill simply does not make sense. As I said in my opening statement, that is not just my opinion, but the opinion of various different organisations in written and oral evidence. The Bill is so poorly drafted.
The Minister took a lot of time to talk about clause 4, but at this point I want to concentrate on clause 1; we will come to clause 4 later. The Bill will have an impact on the autonomy of local authorities. For years, indeed for decades, local authorities and local councillors at the very local level—I keep using “local”, because that is vital—have played a role in the protection and promotion of human rights. It is important for that to be protected.
The Bill, if passed, will have an impact not only on local authorities but on universities, which is vital because they play an essential role: they gather knowledge, free from interference, to educate people in skills and in thinking critically and independently. Some of my amendments to later provisions in the Bill come back to the importance of universities and how the Bill contradicts previous legislation introduced by the UK Government.
The Bill is, as I say, drafted poorly. I still do not understand the part of the Bill that talks about “a reasonable observer”. That is why we tabled the probing amendment 31. These are subjective, not objective tests. The Minister essentially needs to go back to the drawing board. The SNP is looking to divide the Committee on amendment 22.
Question put, That the amendment be made.
The Chair
Before I call the Minister, it might be helpful to point out that if Members want to be called, they should bob. That way I will be able to work out the sequence of the debate.
Felicity Buchan
I shall begin by addressing amendments 15, 16 and 17. The amendments would remove references in clause 17 that extend the Bill to Scotland. The amendments also remove a reference to Scotland in clause 3. Scottish Ministers are currently named on the face of the Bill so that they can only be exempted from the ban via a change to primary legislation. The amendment would allow Scottish Ministers to be exempted from the ban via secondary legislation.
The Bill’s provisions apply to all areas of the UK. The provisions apply to all public authorities, as defined in section 6 of the Human Rights Act 1998, across England and Wales, Scotland and Northern Ireland. First, it is absolutely essential that the Bill extends to public authorities across the entirety of the UK. Foreign policy is a reserved matter. The Bill ensures that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the United Kingdom Government.
Secondly, as we heard extensively in the oral evidence sessions, boycott, divestment and sanctions policies are divisive and undermine community cohesion. We have seen examples of actual or attempted BDS activity in public authorities in England, Wales, Scotland and Northern Ireland. It is crucial therefore that the legislation applies across the UK to prevent such divisive behaviour in any of our communities.
Ms Qaisar
I thank the Minister for giving way; she is being very generous with her time. She has set out that UK foreign policy is a reserved competency. I am interested to seek clarity and understanding on that, as I cannot remember a time when the Scottish Government have taken a different stance to the UK Government on UK foreign policy. Is the Minister able to outline one of those stances?
Felicity Buchan
The purpose of the Bill is to ensure that we do not have any public authorities, whether that is Scottish Government Ministers, Scottish local authorities or English local authorities, taking different foreign policy decisions.
Felicity Buchan
Let me continue, please. I will come on to address a few of the points in relation to procurement and divestment when it represents political and moral disapproval of a foreign state’s conduct. I want to reassure the hon. Member for Airdrie and Shotts on a few points. As for Glasgow City Council changing the name of a street, nothing in the Bill changes the council’s ability to do that.
Felicity Buchan
No, I want to continue to make these points for the sake of clarity and address some of the issues.
Similarly, a Scottish Government Minister could say they oppose the Iraq war. The Bill applies when investment and procurement decisions are based on moral and political disapproval of a foreign state’s conduct.
Chris Stephens
I am grateful to the Minister for giving way. I know she is trying to clarify the situation, but I am afraid that those of us who are Glaswegian and proud of our Glaswegian roots are concerned that the Bill will prevent the actions that Glasgow took in the 1980s from happening again. The Conservative Government’s policy in the 1980s was against sanctions in South Africa, and Strathclyde Regional Council, City of Glasgow District Council and other Scottish local authorities decided to take investment and procurement decisions against the apartheid state of South Africa. City of Glasgow District Council was allowed to rename a street and give someone the freedom of the city, but would it have been able to take the decision to disinvest from apartheid South Africa had the Bill been in place in the 1980s?
Felicity Buchan
If Government sanctions exist, they continue to exist. The Bill is specifically to prohibit divestment and procurement decisions.
I want to address the point made by the hon. Member for Airdrie and Shotts in relation to Russia. I give her my assurance that we will look to introduce a statutory instrument to exempt Russia and Belarus from the provisions of the Bill.
Amendment 30 would remove the decisions of Scottish Ministers from the scope of the Bill, and a carve-out for the decisions of Scottish Ministers would be inserted into clause 2. It is not clear whether the hon. Member for Airdrie and Shotts intends for the amendment to be read alongside amendments 15 to 17. Clause 2 applies the ban in clause 1 only to public authorities, as defined in section 6 of the Human Rights Act 1998. The clause also carefully defines decisions in scope only as those related to a public authority’s investment and procurement functions, which is the point I keep coming back to. I would like to reiterate my response to amendments 15 to 17 by saying it is absolutely essential that the Bill extends to public authorities across the entirety of the UK. That will include Ministers, Departments and agencies in the devolved Administrations, who have also faced pressure to engage in BDS activity.
As I have said, foreign policy is reserved, so it does not trigger a legislative consent motion. However, as the ban applies to the Ministers of the devolved Administrations, this may alter their Executive competence. We have therefore formally engaged the legislative consent process, and I look forward to discussing the Bill further with my counterparts in the devolved Administrations. The Government are not seeking legislative consent for the rest of the Bill’s provisions, as the other provisions do not trigger the legislative consent process.
I was asked specifically about how the Bill affects Northern Ireland. Given the continued absence of the Northern Ireland Assembly and Executive, a legislative consent motion cannot be secured currently. It is important that the Bill applies in Northern Ireland to ensure that the people of Northern Ireland benefit from these important protections. UK Government officials will work with counterparts in Northern Ireland to discuss the Bill’s contents and provisions, along with the Bill’s devolution analysis. We are hopeful that when the Assembly is restored, it will be able to consider and support a legislative consent motion for the Bill.
Felicity Buchan
Let me continue.
The Government will continue to uphold the Sewel convention and make sure that the interests of the devolved Administrations, and of people in Scotland, Wales and Northern Ireland, are taken into account. I will address amendment 1 and see whether that answers the question raised by the hon. Member for Caerphilly. The amendment suggests an addition to clause 17 to make legislative consent a legal requirement. Scottish Ministers, Welsh Ministers and Northern Ireland Departments would be captured by the Bill only once that consent is granted by each of the devolved legislatures.
The hon. Member for Nottingham North suggests an amendment that would undermine the principle that the UK Parliament is sovereign. It is not appropriate to write such a political convention to seek consent into the legislation as a legal precondition for the Bill to apply to devolved Ministers. Furthermore, the codification of the Sewel principles, which are already written in statute, is unnecessary. The Lords Constitution Committee recently reported on the issue, stating:
“We do not believe it would be desirable to involve the courts in adjudicating…on the meaning and application of the convention, which are best resolved through political deliberation.”
For those reasons, I ask hon. Members to withdraw their amendments.
Wayne David
I thank the Minister for her response. First, as far as Northern Ireland is concerned, my understanding of what she has said is that the legislation will not be applicable in large part until the Northern Ireland Assembly is reconvened and has had an opportunity to discuss with central Government a legislative consent motion. That is my understanding of what she has said. Will she confirm that?
Secondly, on the Sewel convention, it is unfortunate that the Government are not prepared to accept the amendment, because it simply reiterates the reality and provides clarification. I accept that in the Government’s mind it could be a questioning of the sovereignty of Parliament, but I do not think an accurate reading of the amendment will in any way suggest that. It recognises that the legislative consent motion process is well established. The Sewel convention needs to be firmed up, and this is one step in ensuring that the partnership of nations in the United Kingdom is made firmer, not weaker.
Felicity Buchan
On the Sewel convention, as I have said, we do not think it is appropriate that that is put into legislation. We feel that that is a political deliberation, but, clearly, the Government are supportive of the Sewel convention. In light of our support of the Sewel convention, we will do everything to work with the devolved Administrations, as we always do in order to try to get an LCM.
On the specific point about Northern Ireland, I want to correct your interpretation of what I said—
Felicity Buchan
My apologies, Sir George; I meant that I wanted to correct the interpretation of the hon. Member for Caerphilly of what I said. The measure will extend and apply to Northern Ireland by virtue of the fact that this is a foreign policy and it is a reserved matter, but we want to work to get the legislative consent motion, which might take time in Northern Ireland because it will require the Assembly to be in place.
Ms Qaisar
We have all spoken about how foreign policy is reserved, but public procurement and the use of taxpayers’ money is a devolved competence. It is completely correct that Northern Ireland, Wales and Scotland attempt to use the leverage of public procurement to incentivise companies to behave sustainably with regard to human rights, labour rights and the environment. That is correct and right.
I am a little confused by the Minister’s contribution and would appreciate clarification. I made an intervention and she was very generous with her time. My question was whether she was able to explain a time when the Scottish Government had not been in line with the UK Government on foreign policy. As far as I am aware, the Scottish Government have always acted responsibly and in line with the UK’s international commitments. Why, therefore, have Scottish Ministers been included on the face of the Bill when the Minister is unable to explain that point?
I also seek clarification on the Minister’s response to my hon. Friend the Member for Glasgow South West. My hon. Friend raised the point—we have spoken quite a bit about Glasgow City Council today—that after renaming the street and inviting Nelson Mandela to come and speak, would they have been able to disinvest? As far as I understood her contribution, the Bill would have stopped disinvestment in South Africa. I would appreciate clarification from the Minister, if she can give it. I would like to divide the Committee on my amendment.
Felicity Buchan
Amendment 4 would remove the power granted to the Secretary of State to amend the schedule so as to make exemptions to the ban for certain bodies and functions and certain types of considerations, and to amend or remove regulations made under those powers.
The power is necessary to ensure that the ban can evolve over time and operate as intended. The Bill rightly applies to the full range of public authorities. That is necessary to ensure that we have a consistent approach to foreign policy and to stop public authorities being distracted from their core duties by divisive debates and policies. In the event that the ban has unintended consequences for a public authority and impacts on its ability to deliver its core functions, however, this power will allow the Secretary of State to exempt the body, or a function of that body, from the ban via a statutory instrument. The exercise of the power will be subject to affirmative resolution by both Houses.
The power will also allow the Secretary of State to exempt certain types of considerations from the ban. That may be necessary if the Secretary of State needs to react quickly to international events. In the drafting of this legislation, my officials have been careful to ensure that the Bill applies only to appropriate bodies and types of considerations. However, the Government may also decide that a certain consideration should be made exempt from the ban so that the Bill can operate as intended. The Secretary of State requires the power so that he can respond effectively to potential unintended consequences that the Bill might have on a public authority without the need for primary legislation. If that had to be done through primary legislation, a public authority might have its ability to carry out public functions hindered for an extended period. I therefore ask the hon. Member for Nottingham North to withdraw his amendment.
Alex Norris
I am grateful for that answer, but I am afraid that the Minister has rather made the Opposition’s case for us. It is deeply concerning to hear that the purpose of the provision is about anxiety in Government concerning the possibility of a bundle of unintended consequences that could hinder a public body’s activities for a number of months, as has been said. That is the reality—we have said that from start to finish. This thing will set a fire. This thing will roll in ways that we cannot conceive of, because it is so broadly drawn and, in places, so erratically drawn. That is a reason for not proceeding with the Bill in this form, and for coming back together to produce—as we are all keen to—something that is less broad and wide-ranging, but delivering a solution to the problem that we are seeking to tackle.
The Minister’s argument is not for retaining subsection (2), but for revisiting the provisions. I therefore hope that, having said that, she will reflect on the fact that she discussed the great anxiety about the unintended consequences of the Bill. That is what we should be addressing, instead of just giving yet more powers to Secretaries of State to act as they wish. I will press the amendment to a Division.
Question put, That the amendment be made.
Alex Norris
I beg to move amendment 2, in clause 3, page 2, line 40, at end insert—
“(4A) Section 1 does not apply to a decision which has been made in accordance with a Statement of Policy Relating to Human Rights.
(4B) A Statement of Policy Relating to Human Rights—
(a) is a public authority’s policy criteria relating to disinvestment in cases concerning contravention of human rights; and
(b) must be applied consistently by the public authority to all foreign countries.
(4C) Within 60 days of the passing of this Act, the Secretary of State must publish, and lay before Parliament, guidance on the form, content and application of Statements for the purposes of this section.
(4D) Public authorities must have regard to the guidance referenced in subsection (4C) when devising a Statement.”
This amendment would exempt public bodies from the prohibition in section 1, where the decision has been made in accordance with a Statement of Policy Relating to Human Rights. A Statement may not single out individual nations, but would have to be applied consistently, and in accordance with guidance published by the Secretary of State.
We heard on Second Reading, and again today, that the Government want to put disapproval of the conduct of foreign states and their territories beyond the scope of competent activity for local public bodies, in order to stop public bodies taking partial and potentially harmful stances. However, this Bill is akin to using a nuclear weapon to crack that nut. We have just heard from the Minister that the Government are so concerned about the unintended consequences the Bill may have that they are having to reserve the powers to change it quickly later, lest a public body be shut down for a number of months. The Committee just accepted that change, but it is yet another power grab by the Secretary of State and it is heavy-handed in its enforcement.
Amendment 2 sets out an alternative approach. We have been clear from the outset that it is possible to achieve what both the Government and the Opposition wish to achieve but without the overreach of the Bill in its current form. Amendment 2 would allow a public body to produce a document that sets out its policy on procurement and human rights and for that to be developed in accordance with guidance published by the Secretary of State. This is a relatively long-held Opposition policy. Indeed, it is similar to an amendment I tabled to the Procurement Bill many months ago. It is vital that procurement decisions made with regard to human rights issues be applied across the board, not just to prevent unethical actions against specific states but to ensure that common actions have the greatest impact.
Such a statement of ethical policy would thus ensure consistency in how contracting authorities—or public bodies more generally—decide on such matters, and inconsistent application would be prohibited. The practical effect would be to make it unambiguous that if a public body does not wish to procure goods from Russia because of President Putin’s abhorrent human rights abuses in Ukraine, the law will be on its side. If the same body does not wish to procure services from Xinjiang because of the appalling treatment of Uyghur Muslims, the law will be on its side.
Kim Leadbeater
I rise to speak briefly but strongly in favour of amendment 2. The UK should be a beacon for human rights, not just here at home but in our foreign policy and our relations with other states. That can be done only on the basis of a consistent application of the principles we seek to uphold. It is not hard to do that when human rights abuses are committed by countries we are in conflict with. However, we must be ready to apply the same standards to countries we regard as allies and friends. That is not always easy, but if we fail to do so, we open ourselves up to accusations of double standards and hypocrisy.
Felicity Buchan
Amendment 2 would exempt decisions from the ban that have been made in accordance with a statement of policy relating to human rights, produced by a public authority. The Secretary of State would be required to produce guidance on the content of any such statement, to which public authorities would be required to have regard.
Seventy-five years on from the signing of the universal declaration of human rights, the UK remains steadfastly committed to an open international order, a world where democracy and freedoms grow and where autocracy is challenged. We put open societies and the protection of human rights around the world at the heart of what we do. That includes our membership of the Human Rights Council, robust action to hold Russia to account over its actions in Ukraine and at home, calling out China in Xinjiang, leading the call for the special session on the human rights implications of the conflict in Sudan, and our global human rights sanctions regime.
We continue to work with our partners, civil society and human rights defenders to encourage all states to defend democracy and freedom and to hold those who violate human rights to account. Our annual human rights and democracy reports are an important part of that work. This Government, Foreign, Commonwealth and Development Office Ministers and officials continue to defend individual rights and freedoms, including through regularly raising concerns with other Governments. Our resolve to ensure that everyone can enjoy their rights is unwavering.
The international rules-based system is critical to protecting and realising the human rights and freedoms of people all over the world. We work through the multilateral system to encourage all states to uphold their international human rights obligations and to hold those who violate human rights to account. We are all in agreement that human rights abuses have no place in public supply chains.
I am concerned, however, that this amendment would give public authorities too much discretion to apply blanket boycotts. I also believe that the amendment is unnecessary because of the work that the Government are already doing in the Procurement Bill, which I will address in more detail.
The Procurement Bill already contains a robust regime for the exclusion of suppliers that are unfit to hold public contracts. That Bill sets out a wide range of exclusion grounds that target the most serious risks to public procurement, including modern slavery and human trafficking. The Cabinet Office has strengthened the way in which these terms are defined, so that suppliers may be excluded where there is sufficient evidence that they are responsible for abuses anywhere in the world, whether or not they have been convicted of an offence.
We have mirrored in this Bill the exclusion grounds in the Procurement Bill that pose the most significant risk to public procurement as exceptions to the ban, including for modern slavery and human trafficking. This means that public authorities will be allowed to make a territorial consideration that is influenced by moral or political disapproval of foreign state conduct in so far as it relates to one of the considerations listed in the schedule.
Moreover, there is guidance to help contracting authorities to address human rights risks, and there is well-established practice throughout the procurement process. That detailed and thorough guidance includes sections on managing risks from new procurements and assessing existing contracts, taking action when victims of modern slavery or human rights abuses are identified, and supply chain mapping, and it includes useful tools and training.
For the reasons that I have set out, this amendment is unnecessary, but I am also concerned that it would give authorities too broad a discretion to apply blanket boycotts. The amendment would allow authorities to exclude suppliers from entire nations without proper consideration of whether a supplier itself had had any involvement in the abuse. To exclude suppliers based solely on where they are located conflicts with the open principles of our procurement regime and would in some cases be contrary to the UK’s international obligations, such as non-discrimination requirements set out in the World Trade Organisation agreement on Government procurement.
As I have previously stated, foreign policy is a matter for the UK Government and not an issue for public bodies. It is not appropriate for public bodies to be producing their own policies on human rights in relation to other nations. This amendment would undermine the intentions of the Bill, leaving public authorities distracted by questions and debate about their human rights statements and the foreign policy that lies behind that. Many public authorities with no interest or expertise in such debates would come under pressure to produce statements or to explain why they did not have one. The discretion for public authorities, even acting within Government guidance, would mean a multitude and divergence of foreign policies across our public institutions and a confusing picture on the international stage of what the elected Government’s foreign policy was. My concern is that, were this amendment to be agreed to, every local authority and public body would feel the need to produce such a statement even though they felt that they had no expertise in human rights. I am concerned that it would increase the level of dissension and community friction rather than in any way lessening it.
I just want to clarify that nothing in this Bill affects private individuals and private companies and their ability, clearly, to boycott or divest.
Chris Stephens
That is the double standard in the Bill: private companies can do what they like, but public bodies cannot. If I understand the Minister’s line of argument, she is concerned that this amendment could be used or abused by local authorities, but proposed new subsection (4C) specifically gives the Government the power to stop any blanket boycott. That somewhat negates her arguments.
Lastly, does the Minister agree with the position of any local authority that wishes to disinvest from China and Xinjiang in particular because of its treatment of the Uyghur Muslims?
Felicity Buchan
The hon. Gentleman alludes to the difference between how we treat private and public bodies. There is a very good fundamental reason for that: we want there to be one UK foreign policy and we do not want other public bodies to be making up their own foreign policy or statements on such matters, whereas a private individual or private company is entitled to invest or divest as they see fit.
Bob Blackman
Our public bodies include people from countries all over the world, some of whom may have expertise relating to a particular country. Under this amendment, if they highlighted human rights abuses in a specific country it could result in their public authority introducing a policy that is totally different from that of all other public authorities. Does my hon. Friend agree that such a risk should not be put in the hands of local authorities?
Felicity Buchan
That is a very good point. This amendment carries the risk of allowing a multitude of different statements on human rights, without any consistency, resulting in the community friction that we all desperately seek to avoid. That is why we are looking to boycott the BDS movement.
Alex Norris
I am grateful for the Minister’s response. To address the point made by the hon. Member for Harrow East, the circumstance he outlined could happen now, of course. Part of the reason we are here and that legislation in this space is important is that it does not happen in that way, does it? As we heard in the evidence sessions, it almost exclusively tends to be targeted at Israel. I do not think there is any evidence to suggest that local expertise is causing a thousand flowers to bloom across public bodies. Actually, amendment 2 would protect against that because it would give local authorities tools to say, “Look, we can only do this if we can engage in it across the piece, and we don’t think that that is core business.”
The Minister has expressed her concerns about distractions for local authorities. I know from my time in a local authority, during which we pushed back against a boycott of Israel, that these things flair up over a short period, a lot of energy goes into them, and it would have been much better to have had a fixed point. The amendment reserves the right of the Secretary of State to set out the form, so there would be no wild variance across all public bodies. It would give them a fixed point to anchor to, which would take a lot of pressure off the leaders of public bodies.
I am grateful to the Minister for making those points, but the reality is that we are in slightly different positions. I still hold out the hope—and I will be actively working on this between now and the final stages of this Bill—that our positions will become closer. At this point, however, given that the gap has not closed during this debate, I will have to press my amendment to a Division. We want to send a clear message that there are other ways of achieving this very important purpose.
Economic Activity of Public Bodies (Overseas Matters) Bill (Fifth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 12th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 12 September 2023 - (12 Sep 2023)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 6 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Amendments 5 and 6 would remove from the Bill the references to Israel, the Occupied Palestinian Territories and the occupied Golan Heights. All Committee members can agree that BDS is a pernicious movement that does nothing to promote peace in the middle east and sows division and hatred in the UK.
Last week, we heard passionate testimonies from representatives of the Jewish community in the UK on the impact of anti-Israel boycotts and divestments on community cohesion and their links to antisemitism. The witnesses set out that the statistics clearly demonstrate the link between antisemitism here in the UK and the situation in Israel: the months with the highest levels of antisemitic incidents in the UK correspond to the months in which conflicts have happened in Israel and the Occupied Palestinian Territories. That is why most of us on the Committee agree that we need to legislate to ban public authorities from engaging in such BDS campaigns.
We have seen that BDS campaigns pursued by public authorities often target the settlements in the Occupied Palestinian Territories. For example, in 2014 Leicester City Council passed a motion that stated:
“Leicester City Council resolves, insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank”.
In 2021, a UN special rapporteur wrote to all local government pensions scheme committee chairs urging them to divest from companies that conduct business in the Israeli settlements. I think we can all agree that we should send a clear message that such campaigns should not be allowed, and the Bill provides that clarity.
For those reasons, it is vital that should a future Government choose to allow public authorities to engage in boycotts or divestments against Israel, it is done through a change to primary legislation and is thus subject to full parliamentary scrutiny. That is the only reason that Israel, the Occupied Palestinian Territories and the Occupied Golan Heights are named on the face of the Bill. The addition to the Bill is simply about ensuring that we use the most appropriate parliamentary procedure for a decision that would have a harmful impact on community cohesion in the UK.
Several Members referred to UK Government foreign policy. I will make it absolutely clear that the Bill does not in any way legislate for the UK’s foreign policy with regard to Israel. The Bill will not prevent the UK from imposing sanctions or otherwise changing our foreign policy on any country in the future if it is deemed appropriate by the Foreign, Commonwealth and Development Office. The Bill does not change our policy on the middle east. Our position on the middle east peace process is and continues to be clear: we support a negotiated settlement leading to a safe and secure Israel, living alongside a viable and sovereign Palestinian state based on 1967 borders with agreed land swaps, Jerusalem as the shared capital of both states and a just, fair, agreed and realistic settlement for refugees.
I will also make it clear that the UK believes very strongly in the importance of complying with international obligations under the UN charter and in compliance with Security Council resolutions. As I stated on Second Reading, the view of the UK Government is that the Bill is compliant with international law and our obligations under UN Security Council resolution 2334. For those reasons, I respectfully ask hon. Members to withdraw the amendments.
Wayne David (Caerphilly) (Lab)
I thank the Minister for her statement. I accept what she says about the Government’s commitment to a two-state solution, and so on, but that does not take away from the fact that substantive elements of the Bill, at the very least, place a serious question mark over that commitment. That is objectively true.
As Opposition Members have made clear many times, we are opposed to the BDS movement and all that it stands for, but this is not about that. The question before us is: what is the best way to tackle that? We believe that the best way to do so is on a cross-party basis by getting people together and creating a political consensus that will hold firm and endure. That is where we stand, and that is the basis of our opposition to the Bill.
It is also extremely important that we reiterate our commitment to international law. Again, I hear what the Minister says, and I do not doubt her sincerity for one moment, but there is nevertheless an opinion among those in the legal community that this legislation substantially questions our commitment to international law, and we are extremely concerned about that.
It is important that we conduct this whole debate in a constructive and friendly way, as I believe we have done so far. It is very important that whatever the outcome of our final deliberations and whether or not the Bill becomes an Act, it is nevertheless extremely important that we collectively reaffirm our commitment to peace and stability between Israel and Palestine.
Wayne David
I am a normal person, not a lawyer, and I am open to suggestions about what would be a legally tight definition. The important thing is that if the amendment were passed, I am sufficiently confident that His Majesty’s Government would draw up the correct legal definitions to ensure that the political views the Committee had expressed were made real. I take the hon. Gentleman’s point, but there is room for co-operation and hopefully a conclusion on this issue.
Felicity Buchan
I will address amendment 18 first and then the others. Amendment 18 would allow public authorities to choose not to procure from or invest in a company if that would give financial, economic or other benefit to a party that has breached international law.
The UK believes strongly in complying with its obligations under international law. That is why the Bill contains an exception to the ban for considerations that a decision maker reasonably considers are relevant to whether the decision would place the United Kingdom in breach of its obligations under international law. Nothing in the Bill breaks international law, nor would it compel any public body to take a decision that would put the UK in breach of international law; but judgment on whether a body is guilty of a violation of international law is not a decision for public authorities. That should be determined by a competent court. I was slightly beaten to that point by my hon. Friend the Member for Harrow East. Where there has been a judgment that a party has breached international law, the Government will review their response accordingly. Again, it is not the place of public authorities to do so.
The Bill already contains an exception to the ban for considerations relating to labour market misconduct, including modern slavery and human trafficking. That means that public authorities will be able to continue having regard to territorial considerations that are relevant to a breach of international treaties banning forced labour. We recognise that modern slavery often occurs in the supply chains of countries that are not party to international treaties on forced labour and that are unlikely to prosecute the perpetrators. Therefore, the Procurement Bill makes explicit provision for a new exclusion ground that does not require a conviction to disregard bids from suppliers that are known to use forced labour or perpetuate modern slavery.
Amendments 14, 19, 20 and 21 would add an exemption to the application of clause 1 for considerations relating to genocide, ethnic cleansing and apartheid. Apartheid is considered a crime against humanity. Although ethnic cleansing is not recognised as an independent crime under international law, the practice of ethnic cleansing may constitute genocide, crimes against humanity or war crimes. If genocide or a crime against humanity were ruled to have occurred by a competent national or international court—that is the important point—after consideration of all the evidence available in the context of a credible judicial process, it would send a strong signal to the international community. The Government would take any such ruling very seriously and consider their response, which could include the potential use of sanctions.
It is the long-standing policy of successive British Governments that judgment as to whether genocide or a crime against humanity has occurred is for a competent national or international court. It is not for the UK Government, and it is certainly not for public authorities to decide. For those reasons, I ask hon. Members to withdraw their amendments.
Chris Stephens
I know you are a seasoned political veteran, Sir George—it is always clause 4 that causes a problem, isn’t it? It is always clause 4, and the problem with this clause 4 is that it is the thought police clause. The difference is—[Interruption.] I have been rehearsing that one. I made that wisecrack privately to Sir George the other day, so yes. But this is the thought police clause. The normal police come for someone if they commit an act that is criminal, but the thought police are different. They act if someone “intends” to act in a particular way. Under the Bill, the authorities do not need to demonstrate any proof of intent to publish a particular kind of statement. That is impossible to do in the normal world, so let us just rely on telepathy to find out someone’s intent.
It gets worse, and I thank the hon. Member for Harrow East for taking my intervention. In clause 4, entitled “Related prohibition on statements”, subsection (1)(b) proposes that even
“were it lawful to do so”,
any alleged intent to do so would be a criminal act. You need only consult George Orwell on this, Sir George—prove me wrong if you can—because he says, “Yes, this is the Thinkpol, whose job is to monitor the citizens of Oceania and arrest all those who have committed thoughtcrime in challenge to the status quo authority of the Party and the regime of Big Brother.” Fortunately, there is an escape clause for the Government in clause 4, which states:
“This section does not apply to a statement by a Minister of the Crown”.
Lucky them—but not anybody else.
The convention for the protection of human rights and fundamental freedoms, better known as the European convention on human rights, was opened for signature in Rome on 4 November 1950—only two years after George Orwell published his book “1984”. The world had just come through a period in which freedom of expression had been brutally suppressed. The ECHR, to which the UK is still a signatory, defines freedom of expression thus:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
The purpose of the Bill is therefore to break an international convention and undermine a fundamental human right. Why would any Government do that? Is it because this is the red meat that the Tory party is throwing to people—a policy that actively restricts moral and political freedom of expression on human rights, environmental protections and workers’ rights? Are they playing to a narrow audience with dog-whistle policies? We can end this dystopian farce here and now.
Witness after witness, even the witnesses who support the Bill and support the Government’s position on the Bill, said—all of them—that they had difficulties with this clause and how it could possibly be enacted and enforced. We need to take account of that, and I ask the House to support the amendment tabled by my hon. Friend the Member for Airdrie and Shotts. If not, we certainly need to remove clause 4.
Felicity Buchan
I shall start by explaining why we do not support amendment 24, and I will then explain why we feel strongly that clause 4 needs to stand part of the Bill. I will address a few of the specific questions, but I will do so at the end, because I think it is important that hon. Members see the logical flow of the argument.
Amendment 24 seeks to ensure that none of the provisions in clause 4 will conflict with the Human Rights Act 1998. This amendment is unnecessary, as the Government’s assessment is that all the provisions in the Bill are consistent with the Human Rights Act and the European convention on human rights, including article 10, the right to freedom of expression.
The purpose of the European convention on human rights, which the Human Rights Act implemented into domestic law, is to regulate the relationship between the state and the individual and specifically to protect private persons’ fundamental rights from potential interference by the state. This includes private persons’ article 10 right to freedom of expression. Public authorities, which form part of the state or perform the state’s functions, are the potential perpetrators of ECHR violations and therefore do not have these rights. Public authorities do not have the rights; the rights are to protect private individuals and private bodies against state interference. This assessment was supported by several of the witnesses that the Committee heard from last week, and that is why we believe that the amendment is unnecessary.
Clause 4 prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by this Bill. That includes statements indicating that the public body would have acted differently were the legislation not in place. It is important that we focus on public bodies, because this does not restrict the rights of individuals. We talked earlier about the difference, and the simplest way to express that is that if an individual is speaking on their own behalf, they are speaking as a private individual. However, if I say that I am speaking on behalf of my university or my local authority, then I speak on the behalf of a public body.
Academic freedom has been mentioned. If I am a university professor, which I am highly unlikely ever to be, I can say whatever I want. If, however, I stand up and say, “I, Felicity Buchan, speaking on behalf of Imperial College,” which is in my constituency, that is representing the view of Imperial College, as opposed to that of Felicity Buchan.
Ms Qaisar
The Minister is being generous with her time. If the councillor in the hypothetical scenario I gave wanted to make a point, would he have to say, “I am Joe Bloggs. I just so happen to be a councillor. I just so happen to be the leader of the council,” or can he say, “I am a councillor Joe Bloggs and I just so happen to be the leader of the council.” I still do not understand.
Felicity Buchan
I will go into detail on it. Give me one minute and I will go through all those scenarios.
Dr Luke Evans (Bosworth) (Con)
As Members of Parliament, we are always having to declare our interests if we think there is going to be a conflict. I asked a question yesterday about veterans’ health. I am the honorary president of the Royal British Legion. When discussing such topics, particularly when in front of the media, we know exactly where there could be a conflict of interest and therefore make the determination that it should be declared. We should therefore allow the legislation to stay as it is, because the distinction is clear between speaking on behalf of a public body and speaking as an individual elected to represent a point of view.
Felicity Buchan
I agree. That is the distinction between representing a public body and speaking as an individual, even if someone is an elected councillor.
Felicity Buchan
I am going to go into the detail on some points, and then I will take questions.
This clause does not impact an individual’s freedom to express a view. It is clear that declarations of boycotts and divestments are divisive and undermine community cohesion. These types of policies have no place in public bodies. We have seen examples of public bodies making declarations to boycott and divest as far as the law allows. Recent cases of declarations of anti-Israel boycotts that are not intended to be implemented, such as in Leicester, Swansea and Gwynedd councils, have been strongly opposed by Jewish groups. Such declarations are harmful even where the law does not allow boycotts and divestments. Therefore, such declarations cannot be made under the clause.
We heard repeatedly in evidence that a declaration stating, “We would boycott were it legal to do so,” is enough to trigger community friction and antisemitism issues. For instance, in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott
“insofar as legal considerations allow”.
Alex Norris
I am grateful to the Minister for the case that she is making. We agree with everything she said about that hateful speech, but the problem is that she just said, a minute before, that so long as a person essentially walks out of the council building, or says, “I am talking in an individual capacity”, despite being the leader of the council, they can say all those things and there is no protection under the clause. What meaningful advantage does the clause actually provide?
Felicity Buchan
This very much has the advantage of preventing Leicester City Council from making such a declaration. So anyone representing the views of Leicester City Council and saying, “I am standing here giving the views of Leicester City Council” is not allowed to do that.
Let me move on to exact circumstances. Under the clause, individuals, including councillors, are not prevented from making statements of their personal opinions freely in their own capacity. Councillors are not a public authority and, therefore, they will not be prevented from expressing their support for or voting in favour of a BDS motion. For example, representations made by councillors during a debate that indicate that they would be in favour of their local authority engaging in boycotts or a divestment campaign will not be captured by the clause. It will apply only to statements made on behalf of a local authority. Therefore, if a local authority published the minutes of a debate or a meeting in which a councillor said that they would be in favour of their local authority engaging in such campaigns, this would not be captured.
As I have promised, I will make that distinction clear in the Bill’s explanatory notes. We want this to be very clear. There is a real concern that recent declarations of anti-Israel boycotts, even when they are not implemented in practice, have driven and contributed to rising antisemitism.
Steve McCabe
I want to return to the example that the Minister cited relating to a personal or public persona. She said that if Felicity Buchan said something in a personal capacity, that would be fine, but if she said it as a professor or representative of an organisation, that would not. If Felicity Buchan were an extremely well-known, recognisable public figure, which she may well be one day, is it considerable that her personal persona would be divisible from her public persona in any credible way that courts or the wider public would recognise?
Felicity Buchan
The Bill is not distinguishing between personas, individual or public. It is a sentiment that I am giving as an individual, as opposed to doing so as leader of my council or head of my university, representing my university. It is about the distinction between the individual and the public body.
I am coming to the end of my remarks. We will put that distinction into very clear guidance in the explanatory notes.
Chris Stephens
It is important that we get to the bottom of this. There is a real enforcement difficulty here. Some newspapers are not always friendly to my party, some are not friendly to the Labour party, and some, believe it or not, are not friendly to the Conservative party. A newspaper could come up with a scenario in which it was quoting someone directly and giving the impression that that was their view on behalf of a public body, without expressing that that person was speaking in a personal capacity. That is a real difficulty. Of course, the other difficulty is that the Felicity Buchan we are referring to is a Minister of the Crown, so anything that Felicity Buchan says is completely exempt under the clause.
Felicity Buchan
On the point about what a newspaper may or may not infer, clearly for there to be enforcement it needs to be proved. We will go on to talk about enforcement later, but I think there is a clear distinction between stating something in a personal capacity and representing one’s institution. On that basis, I recommend that the amendment be rejected and that clause 4 stand part of the Bill.
Ms Qaisar
I thank hon. Members for all their comments. I agree with Opposition Members that clause 4 needs serious reworking or simply removal from the Bill. As has been mentioned, and as we heard in our evidence sessions, the clause marks a dangerous attack on the article 10 right to freedom of expression set out in the Human Rights Act. We must ensure that the Bill does not impede the rights of individuals freely to express their views.
I am sorry, but I am not reassured by the comments in the impact assessment and from the Minister that the Bill requires such strong provisions preventing freedom of expression. I am surprised that the Government have sought to include such provisions in the Bill. They seem to have failed to acknowledge that the clause has the potential to engage individuals’ human rights, as is proven by the lack of a human rights memorandum to accompany the legislation. I remind Government Members that this Government claim to be a bastion of free speech.
Alex Norris
Clause 6 sets out the enforcement authorities for the Bill’s provisions. Subsection (2) sets out that the enforcement authority is the Secretary of State or the Treasury, unless otherwise stated. Subsection (4) states that for any decision or statement made by an English higher education provider, the enforcement authority will be the Office for Students. On the face of it, that seems a fairly benign set-up for enforcement, but it creates a distinction in how the Bill treats different public bodies, on which I would like to press the Minister.
On the one hand, the Bill is saying that enforcement against higher education providers will be given over to a third actor, the Office for Students. On the other hand, it is saying that local government will be policed by national Government instead. Amendment 8 tries to put those things on a more consistent footing and to say that there should be less variance in enforcement. The amendment puts forward the Office for Local Government as a more suitable authority for enforcement of the Bill’s provisions in relation to local government.
I hope that the Minister will cover this issue in her response, because I do not know why there is divergence. She can put me right if I am wrong, but I fear that this is a continuation of central Government’s heavy-handed manner with regard to local authorities. Part of the problem with our approach is that we get devolution when local leaders get the answer “right”, but not so much when central Government disagree with them. Adding clause 6 to the Bill unamended will continue the trend of the Government wishing to keep the reins on local government. Given that they have already chosen to use the Office for Students, surely aligning that with the Office for Local Government would make an awful lot more sense.
Amendment 9 is similar to my amendment 4 on Henry VIII powers. The Government are reserving the ability to change the enforcement authorities as they wish under subsection (6). Amendment 9 seeks to delete that provision and ensure that we can set out, through normal parliamentary processes, who will enforce the legislation. Local councils are not going to change that much, and public bodies generally are not going to change that much, but the Government need emergency powers to vary the enforcement agency. If the Government wish to do things a certain way, they should put that in the Bill, and if they wish to change it they should return to Parliament through primary processes.
Felicity Buchan
I urge the Committee to reject the amendments. Let me explain why.
Amendment 8 would establish the Office for Local Government as the enforcement authority in relation to a decision or statement made by local authorities, except where specified otherwise. We have carefully considered the most appropriate enforcement authorities across the sectors that are covered by the Bill; for example, the Pensions Regulator has an existing role in regulating the administration and governance of the local government pension scheme. Although we are expanding some powers, the enforcement authorities listed in the Bill already have an existing role in enforcement for those public authorities. That is not the case for the Office for Local Government, which the hon. Member for Nottingham North is proposing.
The Office for Local Government is not envisaged as an enforcement authority for anything. It is intended to provide data and analysis about the performance of local government and to support its improvement, but it is not envisaged to have a role in regulating local government’s activities. It would therefore not be appropriate for it to have an enforcement role against local authorities in this context. Furthermore, Oflog is an office of the Department for Levelling Up, Housing and Communities and, as such, does not have a statutory basis. The effect of amendment 8 would therefore be to keep responsibility with the Secretary of State.
Amendment 9 would remove the power given to the Secretary of State or the Minister for the Cabinet Office to change the enforcement authorities in relation to a decision or statement captured by the Bill. The Bill will provide a power for the Secretary of State and other enforcement authorities to issue compliance notices, and to investigate and fine public bodies, where there is a breach of the ban. Public bodies subject to the ban will also be susceptible to judicial review if they break this law.
We have carefully considered the most appropriate enforcement authorities across some of the sectors covered by the Bill, such as the Pensions Regulator. For higher education providers on the register of the Office for Students, the Office for Students should be the responsible enforcement authority. As the Bill is drafted, the Secretary of State or the Treasury should be the enforcement authority for all other public bodies subject to clauses 1 and 4. Ministers of the Crown are not subject to the additional enforcement regime but are subject to judicial review.
In time, the most appropriate regulators for each of the sectors covered by the Bill may change. The Bill provides the necessary flexibility, via the power given to the Secretary of State or the Minister for the Cabinet Office, to update the respective enforcement authorities if they change. For those reasons, I ask the hon. Member for Nottingham North to withdraw his amendments.
Alex Norris
I am grateful for the Minister’s reply. I do not intend to press either amendment to a Division, but I will make a couple of points in response.
The Minister mentions that Oflog may not sit elegantly with the Office for Students, because the Office for Students has an existing role doing this type of activity, whereas Oflog does not. However, Oflog was only established in June, so of course it does not have a similar record or similar experience, but that is a person-made thing that could be changed. The Minister also says that Oflog was not envisaged as an enforcement authority, but I cannot believe that the Office for Students was ever really envisaged to be an enforcement authority either.
Similarly, the default enforcement authority in the Bill is the Secretary of State. I do not think that many people go to the ballot box imagining the capacities of different Secretaries of State to kick doors in; I hope not, anyway, because they certainly would not cast a ballot for me. I am therefore not wholly convinced that that is a brilliant argument against the amendment.
I also cannot accept the final point that the most appropriate agency may change in time. If that were the case as a result of the disestablishment of the Office for Students, say, that would itself require primary legislation, and the enforcement agency would be changed routinely as part of that. I do not think that Ministers should have the ability to change enforcement agencies on a whim—because one agency does not give the answers they want, for example—but I think there is a real risk of that. However, I do not think that that is enough to divide the Committee at this point, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Jacob Young.)
Economic Activity of Public Bodies (Overseas Matters) Bill (Sixth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 14th September 2023
(1 year, 3 months ago)
Public Bill CommitteesEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 14 September 2023 - (14 Sep 2023)
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Chris Stephens
It is a pleasure to see you in the Chair, Dame Caroline.
In considering this clause, we will continue some of the debates we had on clause 4 on Tuesday. We have heard many similar views from a range of parties that the Bill is an unethical attempt to stifle freedom of expression and legitimate concerns of councils and other publicly funded bodies. They will face significant fines for being about to, or likely to, associate with international norms of behaviour. And who will be empowered to conduct investigations into those suspected breaches? Why, it will be UK Government Ministers themselves who are granted that authority! There go freedom of expression and the rule of law. I ask Members to support the SNP amendments.
The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)
Amendments 25 to 29 would remove enforcement authorities’ power to give information notices and compliance notices in anticipation of a contravention of the ban.
First and foremost, the powers given to enforcement authorities to be used before such a breach will prevent the sort of deeply divisive activity that we have heard about from representatives of the Board of Deputies of British Jews and the Jewish Leadership Council in oral evidence. It is obviously much better to prevent a breach of the ban in the first place than to wait for a divisive boycott or divestment policy to be put in place before taking action.
I reassure hon. Members that that does not mean that there will be active monitoring of public authorities. Potential breaches will be investigated as and when they are brought to the attention of enforcement authorities by third parties. When flagged to enforcement authorities, it is only where relevant to a potential breach of clause 1 or 4 that an information notice may be issued to require information from a relevant public body.
Finally, the enforcement regime does not provide unprecedented powers for enforcement authorities. It is based on existing regimes. The powers are based on those that the Office for Students already has for regulating universities, and the powers to enforce the ban for local government pension schemes are similar to those that the Pensions Regulator already has. I therefore ask that the amendments be withdrawn.
Chris Stephens
We wish to test the will of the Committee on the matter. I ask Members to support our amendments.
Question put, That the amendment be made.
Alex Norris (Nottingham North) (Lab/Co-op)
I beg to move amendment 10, in clause 7, page 5, line 32, leave out subsection (8).
This amendment removes provisions stipulating that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.
It is a pleasure to see you in the Chair, Dame Caroline.
Clause 7 sets out the significant powers to compel information that will be made available to the enforcement authorities detailed in clause 6. As we have heard, the enforcement authority will most often be the Secretary of State. The provisions in clause 7 provide enforcement authorities with the power to prepare and issue an information notice to request from a relevant public body information relating to a decision in respect of the Bill. The enforcement authority—usually the Secretary of State, as I say—can request any information likely to be useful for it to assess whether the provisions of the Bill have been contravened or are likely to be contravened.
Provision is also made in respect of clause 4, the gagging clause. Clause 7 means that the enforcement authority can request information if it is satisfied that a public body subject to the Bill is about to publish, may publish or has already published a statement prohibited by the Bill. The most egregious provision is subsection (8), which provides:
“A person providing information in compliance with an information notice does not breach—
(a) any obligation of confidence owed by the person in respect of the information, or
(b) any other restriction on the disclosure of information (however imposed).”
“However imposed” is a challenging phrase. It seems to grant the Secretary of State or other relevant bodies the power to issue notices that would not only require all information to be handed over, but override normally protected duties of confidentiality, safeguarding or legal privilege. That is very significant. We would argue that those powers of investigation go beyond the powers of the security services to compel information. There is no clarity or sense of what checks and balances there are. Even the security services, which do not have that degree of power, have oversight mechanisms such as the Intelligence and Security Committee of Parliament. Frankly, this seems to be a very strong power to reserve to the Security of State or, indeed, the Office for Students.
We have heard evidence from multiple witnesses who are concerned about these provisions. We did hear from others who are less concerned, but even if colleagues consider the case I have set out to be wrong or overstated, the ambiguity is obvious. At the very least, the Bill is not clear enough. It is important to say that the Government do not—if I have understood properly what the Minister told the Committee last week—want the provisions to supersede legal privilege. That is welcome, and I am keen to have similar commitments regarding safeguarding duties. If that is the case, amendment 10 promotes that.
I believe that the Government ought to accept our amendment, or at least propose an alternative in lieu. What is in the Bill seems overbearing; if not overbearing, it is definitely unclear. That, at least, must be resolved.
Felicity Buchan
Amendment 10 would remove clause 7(8), which stipulates that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.
The intention behind clause 7 is to provide a power for enforcement authorities to issue information notices to require information from a relevant public body relating to a decision in respect of the Bill. As drafted, the clause sets out a necessary and proportionate power for enforcement authorities properly to investigate potential breaches of the ban.
I must be clear that the clause does not place an undue burden on public bodies in scope of the ban. Information may be requested only if the enforcement authority is satisfied that a person has made or will make a decision or statement in breach of the Bill and that the information is likely to be useful for the enforcement authority’s investigation. Subsection (8) provides standard wording in order to give assurance to the person complying with the information notice that they will not be breaching an obligation of confidence or any other restriction on disclosure. The Bill is by no means unique in including such drafting; the same caveat is provided for in the Agriculture Act 2020, the Building Safety Act 2022 and the Health and Care Act 2022, for example.
The hon. Member for Nottingham North has said that he is concerned that the subsection would override the privilege between lawyer and client. I can reassure him that it does not. Legal professional privilege is a fundamental common-law right, including for those public bodies captured by the Bill, and specific words would not be needed to override it. The information power therefore does not extend to legally privileged material; I can confirm that I will clarify that point explicitly in the Bill’s explanatory notes. I would also add that Richard Hermer KC has subsequently clarified, in written evidence to the Committee on this point, his view that it is likely that a court would not deem legal professional privilege to be overridden by the clause.
Subsection (8) does not provide a right to extract the information, nor does it give a power to the Government; it simply provides the person who is disclosing information necessary to investigate a potential breach with protection against a claim for breach of confidence or any other restriction. I therefore ask the hon. Member to withdraw his amendment.
Kim Leadbeater (Batley and Spen) (Lab)
It is really important that legislation passed by the House be clear and unambiguous. As we have heard repeatedly in this Committee from a wide variety of sources, including witnesses who gave oral evidence and those who submitted written evidence, the Bill fails that test.
This subsection is another example of that. The open-ended reference to
“any other restriction on the disclosure of information”
makes no distinction, for example, between somebody expressing a view in a private and in a professional capacity. That cannot be right. Subsection (8) should be deleted.
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
I beg to move amendment 33, in clause 7, page 5, line 39, leave out from “legislation” to end of line 41.
This amendment is to probe the way the legislation appears to “qualify” the data protection legislation.
It is a pleasure to serve under your chairmanship, Dame Caroline.
Like previous clauses that we have discussed, clause 7 is poorly drafted. It hands enforcement authorities powers that risk infringing on civil liberties such as the right to a private life. The clause allows an enforcement authority to compel a person suspected of contravening a ban to provide information, including personal information about people involved with a decision. It is clear that the intention is to prevent a public body from contravening clause 4, the so-called gagging clause. However, the broadness of the clause risks casting too wide a net and infringing on personal data. My amendment 33 seeks clarity from the Government as to how the clause will interact with existing data protection legislation.
Data law exists to protect people’s privacy and data, but the Bill is confusingly drafted. In its current form, the clause could be interpreted as implying that existing data protection legislation is to be read in line with the Bill, rather than the other way around. That obviously raises issues about an individual’s right to data privacy. The circularity of the drafting could potentially mean information disclosure obligations superseding data protection legislation. As has been raised numerous times under other clauses, the drafting clearly suggests that little thought has gone into the powers granted to enforcement authorities. It is unclear whether any assessment has taken place of the legal necessity of the powers or of whether they are proportionate under the General Data Protection Regulation and the Data Protection Act 2018.
The drafting of clause 7(8) is particularly concerning. It provides that disclosure of information under the provisions will not breach
“any obligation of confidence owed by the person in respect of the information, or…any other restriction on the disclosure of information (however imposed).”
That is such a broad definition that it potentially includes everything from contractual restrictions and court orders to legal professional privilege and even statutory restrictions on information disclosures.
Many people have raised these concerns, as we know from our evidence sessions last week and from written submissions. I am sure that granting such expansive powers was not the Government’s intention in drafting the clause. I hope that the Minister will provide an explanation of why they have drafted the legislation so confusingly in respect of data protection and why they are granting such expansive powers to enforcement authorities.
The clause has the potential to allow a severe intrusion on an individual’s right to privacy under article 8 of the European convention on human rights, which provides the right to a private life. The grounds on which information can be requested are very wide: someone would need merely to be suspected of being in the process of potentially making a prohibited decision or statement to be required to hand over information. That is compounded by the requirement to provide any information that is
“likely to be useful to the enforcement authority”.
It would be beneficial if the Government explained what kind of information could be requested through an information notice.
Amendment 33 is a probing amendment, so I will not push it to a vote, but I hope that the Government will provide further detail on what evidence individuals will have to provide when issued with an information notice, as well as looking again at the broad powers granted under the clause.
Felicity Buchan
Amendment 33 would remove the part of clause 7 that refers to compliance with data protection legislation, specifically the requirement that the provisions of the clause should be taken into account when determining whether the provision of information would contravene data protection legislation. Importantly, an information notice does not require the provision of information if this would be in contravention of the data protection legislation.
The clause provides a lawful basis for sharing information. This is a standard drafting mechanism that respects the principles of data protection; it does not alter the principles of data protection. As I have already set out, the Bill is by no means unique in including this drafting, which features in various pieces of existing legislation, such as the Building Safety Act 2022 and the Agriculture Act 2020. For those reasons, I ask the hon. Member for Airdrie and Shotts to withdraw the amendment.
Ms Qaisar
I thank the Minister for her response, but I do not think it goes far enough in addressing the concerns that I and other Members have raised. I heard what she said, and I understand from her previous contributions that some additions will be made to the explanatory notes. I am slightly concerned that, when they made concessions on clause 7 and others, the Government said that there will simply be additions to the explanatory notes, rather than anything on the face of the Bill. I hope the Minister will go back and seriously consider how to tighten up the language in the clause. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Clause 8 ordered to stand part of the Bill.
Clause 9
Monetary penalties: power
Question proposed, That the clause stand part of the Bill.
Alex Norris
I rise to speak to amendments 11 to 13, which relate to clauses 9 and 10. Clause 10(1) states that:
“The Secretary of State must, by regulations, prescribe a maximum penalty for the purposes of section 9”.
Clause 9 states that an enforcement authority may impose a monetary penalty on someone if they do not comply with the provisions of the Bill. Similarly, clause 10(2) states that:
“The Secretary of State may, by regulations, make provision about matters to which the enforcement authority must, or must not, have regard in exercising its powers under section 9”,
which refers to the power to impose monetary penalties.
The regulations set by the Secretary of State will be highly consequential, because they will show how the sharper elements of the Bill, which we have already discussed, will interact with the rights and freedoms of individuals. They will outline the monetary penalty, but also what the enforcement authority—most often, the Secretary of State—will weigh in making a decision. As drafted the Bill does not specify when the Secretary of State must make these regulations and when they will take effect. That leaves a degree of ambiguity, and a gap where people will be waiting to see when the provisions start to bite.
The Minister previously talked about measures being necessary and proportionate. It is necessary to have an enforcement regime, and proportionate for the shoe to drop at some point; otherwise there is no point in having the legislation. Also, having made a significant number of points around Henry VIII provisions, and, at length, been quite displeased by some of them, even someone with my hard heart would say that it is proportionate for those to be set by regulations, because they will change over time.
The quid pro quo for that is what I have set out in amendments 11, 12 and 13, which remove some of the ambiguity and has the Government say when they intend to set the regulations. These probing amendments—I will not press them to a Division—set out what ought to happen within 60 days of Royal Assent, which would give a degree of clarity for those who are getting their decisions in order and understanding when the provisions are likely to fall. I think that is proportionate. If 60 days is too short or long a period, I hope the Minister will say when the Government intend to do this. I suspect they want to get on with it, but people ought to have that clarity.
Felicity Buchan
Amendment 11 would require the Secretary of State, via regulations, to set a maximum fine that can be imposed on public authorities in breach of the ban within 60 days of the Bill being passed. The suggestion by the hon. Member for Nottingham North to set a deadline of 60 days for the Secretary of State, while well intentioned, is inappropriate.
It is crucial that the threshold for fines is carefully decided in consultation with enforcement authorities, including the Office for Students and The Pensions Regulator. Since that will also be done by the affirmative procedure, the measure will need to go through both Houses. It will need to go through the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee in the House of Lords, and it would need to be debated in both Houses. Clearly, it is a piece of legislation that the Government want to be implemented, so I give the Committee my word that we will do this as expeditiously as possible. It is wrong, however, to commit to 60 days.
The same arguments apply to amendments 12 and 13. We agree that expediency in setting out details of the enforcement regime is important, but we need to take into account proper consultation with the regulators and enforcement authorities, as well as due scrutiny in both Houses. For that reason, I ask the hon. Member for Nottingham North to withdraw the amendments—I know that he said they were probing amendments.
Alex Norris
I am grateful for that answer from the Minister. I am happy to withdraw the amendment on that basis. The point about consultation is important, so I hope that is a full consultation, both with potential enforcement authorities and those who speak for those that are going to fall under the provisions, such as the Local Government Association.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 and 11 ordered to stand part of the Bill.
Clause 12
Application of prohibitions
Question proposed, That the clause stand part of the Bill.
Chris Stephens
I beg to move, That the clause be read a Second time.
One definition of a human being is that they learn from their mistakes. To do so, they must review their actions against a set of criteria, often through an impact assessment, so as to identify any error, misjudgment or unintended consequence that they may have created. That sometimes leads to a revision or reversal of prior actions. I am sure that we all agree with that statement, given that we are all human beings, are we not? The principle applies to presumptions as well as actions. I am sure the Government hope this legislation will impact only on the countries and territories explicitly named in the Bill, but that may be presumptuous. New clause 1 provides a list of countries whose behaviour might change as a consequence of the Bill being enacted. It might change them for the better, but we ought to be aware that some will see it as a green light to expand their breaches of human rights, confident in the knowledge that the UK has turned a blind eye to their behaviour, all in the interest of expanding trade. We believe that the impact assessment and the timescales proposed are realistic and essential to the reputation of the UK. I ask the Committee to send a clear message to those countries by supporting the new clause.
Felicity Buchan
I urge hon. Members to reject the new clause. It would give the Secretary of State or Minister for the Cabinet Office a new duty to conduct an assessment, six months after passage of the Act, of its impact on the UK’s trade and diplomatic relations with the countries identified by the Foreign, Commonwealth and Development Office as human rights priority countries.
The UK Government’s trade positions and diplomatic efforts will not be affected by the Bill. Its intent is to ensure that the UK speaks with one voice internationally; it is not to hamper diplomatic relations by publishing arbitrary impact assessments for the countries listed in the new clause. The Bill makes clear where the power to conduct foreign policy is, and allows other public bodies to focus on their core duties. It does not change any aspect of the UK’s foreign policy.
That is not to say that the Government will not carry out impact assessments on international matters when needed. Indeed, we are already committed to producing independently scrutinised impact assessments, such as those for new free trade agreements. Moreover, as with any Act that the House passes, once the Bill is an Act it can be subjected to post-legislative scrutiny by a parliamentary Select Committee to assess how it has worked in practice since coming into force. The additional impact assessment proposed by the hon. Member for Glasgow South West is unnecessary. For those reasons, I ask him to withdraw the new clause.
Chris Stephens
I have listened carefully to the Minister. If I understood her correctly, she said that the Bill does not change Foreign Office policy. Many Opposition Members believe that some provisions in the Bill actually do change Foreign Office policy, and we explored that in an earlier exchange. Many of us believe that we are using a domestic Bill to change Foreign Office policy, and if we are doing that, I insist that the Committee divide on the new clause.
Felicity Buchan
May I take this opportunity to thank the entire Committee? We have worked effectively and expeditiously. I also thank the two Chairs and the Clerks.
Alex Norris
Similarly, I want to put on record our thanks to you, Dame Caroline, and Sir George, to the top-class Clerks for all their help, to the civil servants for their work and to my colleagues. I draw special attention to my hon. Friend the Member for Wigan (Lisa Nandy), who was shadow Secretary of State on Second Reading, for her efforts and support while we have been getting our work together, and to the Minister for her collegiate work, both inside and outside this room. I also thank her colleagues.
Lia Nici
May I clarify for the record that, as a general rule, Members of Parliament do not make contact with people who are not their own constituents? I will not ask my hard-pressed team in the constituency to respond to people who are not constituents. That is parliamentary protocol. No constituents have got in touch with me about this matter, and I will not be requesting that my team respond to non-constituents, because we need to work with people who really need our help.
Felicity Buchan
I echo the comments of my hon. Friend the Member for Great Grimsby. It may be useful if I spend one minute explaining how the witness list comes about. Each party suggests witnesses, and then a Programming Sub-Committee agrees the list of witnesses. I just wanted to clarify that point.
Question put and agreed to.
Bill accordingly to be reported, without amendment.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 25th October 2023
(1 year, 1 month ago)
Commons ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 October 2023 - (25 Oct 2023)
17:36 - The House divided: - Ayes: 200 / Noes: 273 - Question accordingly negatived.
17:49 - The House divided: - Ayes: 197 / Noes: 276 - Question accordingly negatived.
18:02 - The House divided: - Ayes: 207 / Noes: 269 - Question accordingly negatived.
18:14 - The House divided: - Ayes: 197 / Noes: 275 - Question accordingly negatived.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Zarah Sultana (Coventry South) (Lab)
I rise to speak to the amendment in my name, as well as amendment 13, tabled by my right hon. Friend the Member for Ashton-under-Lyne (Angela Rayner). Both relate to how the Bill will impact public bodies’ rights to make ethical decisions on matters relating to international law and human rights, so that is the subject I will begin with.
Gaza, the United Nations has said, has become a “hellhole”. Israeli bombs have decimated whole neighbourhoods. In six days alone, 6,000 bombs were dropped on the besieged enclave—more bombs than NATO forces dropped in an entire year of intense fighting in Afghanistan. An Israeli military spokesperson was frank about the purpose of the bombing:
“the emphasis is on damage and not on accuracy”.
Nearly 6,000 Palestinians have been killed, including nearly 2,500 children. Last night was the deadliest so far, with 700 people dead. This is happening to one of the most densely populated areas on earth, where 2.3 million people, half of whom are children, are trapped in an area no bigger than the Isle of Wight.
Even before the recent violence, Gaza had been besieged for more than a decade and a half, with access by land, air and water blockaded. Back in 2010, even Conservative Prime Minister David Cameron called it a “prison camp”, but now Israel has imposed a total siege, cutting off water, fuel, electricity and food. The UN says hospitals will run out of fuel today, and incubators with premature babies will stop working. Israel’s evacuation order demanding that 1.1 million people flee their homes was described as
“impossible…without devastating human consequences”
by the United Nations, and the World Health Organisation has called it a
“death sentence for the sick and injured”.
Indiscriminate bombing, collective punishment and forcibly displacing people are “clear violations” of international law—not according to me, but according to the United Nations Secretary-General. This is in no way downplaying or denying Hamas’s appalling attacks on Israeli citizens, which I absolutely condemn, and I again echo the call for the release of hostages. Just as I and no Member here can imagine the fear and anguish of families who have seen loved ones taken hostage, I cannot imagine the terror of Palestinian families facing constant Israeli bombardment. On this question, the United Nations Secretary-General said yesterday: “International law is clear”. Yet in this House, people do not want to accept that. Hamas’s crimes in no way excuse what we have seen since.
That is relevant to this debate because these clear violations of international law have been given the green light by political leaders here in the UK and beyond, even with an Israeli defence official promising to turn Gaza into a “city of tents”. The Prime Minister has still refused to acknowledge these clear violations of international law and, unlike a growing number of his counterparts across the world, he is still refusing to call for an immediate ceasefire. That is utterly shameful, and it goes to the heart of the problem with this Bill and the need for these amendments.
Israel’s brutal war on Gaza is not an isolated example. For example, the Saudi-led war on Yemen, which I have spoken about repeatedly in this House, has claimed the lives of more than 150,000 people. It has included war crimes such as the Saudi bombing of a school bus, which killed more than 40 children and a dozen adults. That war has also been waged with the British Government’s support, including considerable military equipment and assistance.
Let us find some historical examples. Perhaps the most notable is the Government’s support for the apartheid South African regime, which people should be absolutely ashamed of and embarrassed about. The then Prime Minister, Margaret Thatcher, called the African National Congress and Nelson Mandela “terrorists”, and Young Conservatives proudly wore badges calling for him to be hanged. In each of these cases—whether it is Israel’s war on Gaza, the Saudi war on Yemen or apartheid South Africa—violations of international law and gross injustices have been committed with the support and complicity of the British Government.
If the Bill is passed unamended, on these matters and more, public bodies such as local councils and universities will not be able to make ethical procurement or investment decisions. Local democracy will be sidelined, and they will be forced to ignore questions of human rights and international law. The case of South Africa shows most clearly why that would be such a mistake.
The Secretary of State for Levelling Up, Housing and Communities (Michael Gove)
Will the hon. Lady give way?
Zarah Sultana
I am going to continue.
While the Government supported the apartheid regime, local councils across the country rallied around the anti-apartheid movement, with 39 councils across the country having divested from companies operating in South Africa by 1985. If this Bill had been put in place then, that action would have been illegal. That is why a huge coalition of more than 70 organisations have come together to oppose it. Those organisations include trade unions such as ASLEF, the Fire Brigades Union, Unison and Unite, and campaign groups such as Greenpeace and Liberty.
Amendment 17, in my name, and amendment 13 seek to address this grave mistake by protecting the right of public bodies to make ethical decisions, not leaving them at the whim of the deeply unethical decisions of national Governments such as ours. I urge Members from across the House to support the amendments.
Kit Malthouse (North West Hampshire) (Con)
Some years ago, an elderly Jewish constituent came to see me in my surgery concerned about her own safety following a rise in violence in Israel and Palestine, and the resulting antisemitism here in the UK. I said to her then that, if the mob ever came for her, before they got to her they would find me standing in her driveway with my baseball bat in hand. I have stood with the Jewish community across the UK, particularly in London, over the last nearly 25 years of my political career.
When I am told that in seeking to improve this legislation, or in expressing doubts about its impact, I am somehow picking a side, with the implication that I am not standing with that community, I find it both insulting and offensive, particularly coming from Members of this House who, while accepting unquestioningly this legislation, have not done so with other legislation coming from the Government. We all have a duty at this point in time, as the Prime Minister and others have said, to choose our words carefully. On Monday, he said it was a time for “care and caution”, and he was exactly right.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
My right hon. Friend is making a powerful point. Like me, he has spent a lot of time in local government. Does he agree with the point I raised on Second Reading that a key issue is that our local elected brethren—for example, those specifically elected on a foreign policy platform, such as the 17 councillors who served at one stage on Birmingham City Council on behalf of the “Justice for Kashmir” party—may have a specific democratic reason for being there to express that foreign policy view? There will be circumstances in which councillors, including those who sit in the House of Lords and who sit as part of international bodies, such as the congress of the Council of Europe, benefit from parliamentary privilege in expressing their views. There is therefore a risk that this gagging order is not simply gagging what people should expect as freedom of speech, but is also ineffective in the objective it sets out to achieve.
Kit Malthouse
My hon. Friend speaks with experience, and he puts it extremely well. To assume that councillors are merely elected on the basis of their attitude towards potholes and refuse collection is completely erroneous; they are elected for all sorts of reasons. Many councillors and Members of the devolved Administrations who campaign on social, moral, ethical and, indeed, foreign policy issues would say that they have a mandate, and not even to be able to express opposition to the law while still complying with it seems very un-British, extremely illiberal and unnecessarily draconian. We have lots of laws in this country to which councillors and, indeed, other elected officials of opposing political persuasions can express opposition. To have an exception on this basis seems faintly ridiculous.
On amendment 4, I declare my interest as a member of the local government pension fund, which I understand is the only pension fund affected by the Bill. As I said on Second Reading, it is unfortunate that, as the right hon. Member for Hayes and Harlington (John McDonnell) said, my accumulated savings are being put under the control of the Secretary of State. If, in pursuit of this control, my pension diminishes in value because I am forced to follow the decisions made by the Secretary of State, what will be my compensation in retirement?
Amendment 5 is about exempting universities as public bodies. There is a technical reason, as well as a principled reason, for this amendment. I outlined my objection on Second Reading, not least because we had just appointed a free speech tsar and legislated for free speech on university campuses, but here we are busily curtailing free speech through this Bill.
The technical issue is about universities being classified as public bodies. As the Secretary of State will know, there has been a flurry of activity in the Treasury because further education colleges have been classified as public bodies, which means all their debt comes on to the public balance sheet. This is another step towards universities, with their even greater levels of debt, coming on to the balance sheet, about which the Treasury ought to have a say. I hope and believe that, when the Bill goes to the House of Lords, the Treasury will want to have a look.
Finally, amendment 6 is about international law. I know that the Secretary of State, like every member of the Government, is extremely keen on international law and wants to ensure it is followed in all circumstances, and particularly in this current horrific conflict in Israel and Gaza. One of the great benefits of our more flexible system is that, as the Government called for boycotts of Russian businesses and Russian individuals following the invasion of Ukraine, other parts of civic society were able to move extremely quickly to comply, whereas under this legislation they would have to wait for the Government to issue some kind of regulation, which would have to go through this House and be debated. That could possibly take weeks, if not longer, particularly if the House is in recess. Amendment 6 proposes that if the Government declare that a country or situation is in breach of international law, other organisations can immediately respond by issuing their own sanctions or disinvestments.
I honestly believe that the amendments I have tabled—I understand that only amendment 7, which is probably the most important, will go to a Division this evening—represent an attempt to improve the legislation, rather than necessarily picking a side. Although this debate has, I am afraid, been positioned as a pro-Israel or pro-Palestine debate, I am primarily pro-Britain. I want to get the legislation right for this country, for the Jewish community and for every community in this country so that we can live with the consequences for years to come.
Claudia Webbe (Leicester East) (Ind)
Human rights groups have rightly condemned the Bill as an outrageous and unwarranted interference in the ability of councils, universities and other public bodies to use their purchasing power to pursue ethical procurement and investment policies in order to help defend human rights and tackle issues such as climate change. Everyone who cares about issues such as the illegal arms trade, activities of arms manufacturers and traders whose weapons fuel conflicts around the globe, or climate justice, correctly will be horrified by this blatant attack on the basic democratic rights of elected public bodies to act on behalf of the residents who elected them.
The Bill specifically protects the state of Israel, Israeli companies and their human rights abuses from local authority sanctions, no matter what human rights abuses they might commit or are committing now. It is self-evident that councils and other public bodies must be free—and, indeed, have a duty—to act to prevent or discourage breaches of international humanitarian law. It is clear that Israeli settlements are illegal under international law, and no local authority or Government should offer support to such activity. The Government’s anti-BDS Bill contradicts the guiding principles on business and human rights published by the United Nations. It penalises public bodies that comply with the UK’s responsibilities as a permanent member of the UN Security Council. It takes away the democratic right of public bodies to make ethical financial decisions.
The Bill uniquely shields human rights abuses by Israel, allowing it to act with impunity. Indeed, the Bill exempts specific countries—namely Israel, despite its human rights abuses and war crimes—even though we do not know what future actions such countries may take. That is a show of complete contempt for the people of Palestine and the daily inhumanity, abuse and discrimination they face. The Bill is a textbook case of divide and rule politics.
It is profoundly disappointing that the Government are pursuing the anti-boycott Bill at this moment, when tensions are extremely high in our communities. In the past few weeks, almost 7,000 Palestinians have been killed—almost half of them children—and 1,400 Israelis have been killed, and the civilians of Gaza have been massacred by Israeli airstrikes. War crimes are happening in real time. An immediate ceasefire is required, and the Prime Minister, the Government, the Leader of the Opposition and all political leaders in this House should be calling for it.
Boycott, divestment and sanctions are an effective means of peaceful resistance. The Bill is no less toxic than at its previous stage. If it passes, it will close off a vital democratic avenue for the closest representatives of ordinary people at local level to demand accountability and change. It will show how little this Government care about the lives of civilians and the plight of persecuted and exploited communities around the world.
Michael Gove
I thank all Members who have contributed to this debate for the thought and care that they have given to the legislation before us. I appreciate that we are debating these measures at a sensitive time and that, across the House, people will place different emphases on aspects of the legislation and the broader issues with which it deals.
Let me be clear: I have respect for everyone who has spoken and the arguments that they have made. Where there is disagreement, it is in the context of everyone in this House being united in their horror of terrorism, their desire for peace and their belief in a two-state solution.
We are seeking in the Bill to give effect to a manifesto commitment, as my right hon. Friend the Member for Clwyd West (Mr Jones) has just pointed out. The Bill was introduced earlier this year. Indeed, it completed its Committee stage under the careful and thoughtful stewardship of the Under-Secretary of State for Levelling Up, Housing and Communities, my hon. Friend the Member for Kensington (Felicity Buchan), with contributions from all sides of merit, thought and care.
Of course, those debates took place before the horrific events of 7 October, to which so many colleagues in this debate have referred. It is important to remember—I do not think that anyone in the House can forget—that on 7 October we saw the largest loss of Jewish life since the holocaust. That atrocity was perpetrated by terrorists from Hamas whose aim is very clear and very simple: the elimination of the Jewish state, the elimination of Jewish lives. Whatever the background beliefs or origin of those Jewish lives, they were to be exterminated.
More than 200 hostages are still being held by Hamas in Gaza. Across the House, we grieve for them and their families. I thank in particular the hon. Members for Walthamstow (Stella Creasy) and for Brent Central (Dawn Butler), with whom I have been in touch, who have been working very hard to ensure that their constituents are released and brought home. I also thank the shadow Business Secretary, the hon. Member for Stalybridge and Hyde (Jonathan Reynolds), who joined me and many Members from all parties at a vigil in Trafalgar Square on Sunday to call for the return of those hostages.
We also sympathise across the House with the innocent people of Gaza, and with all those Palestinian people who have suffered. We recognise that many of the innocent people in Gaza are hostages too. They are hostages of Hamas, Palestinian Islamic Jihad, and the other terrorist organisations that operate within that territory. It is vital at all times that we draw a distinction between those who suffer in Gaza and those who are perpetrating suffering in the name of terrorism.
I am very conscious that we are debating these issues against that backdrop, but it is important that we look at the principles behind the Bill. I also thank our friend, the ambassador of the state of Israel, who is here in the Gallery to listen to our considerations. She and other ambassadors have been working with the Foreign, Commonwealth and Development Office to ensure that every hostage is released back to their Jewish home with their family.
It is important to recognise what the Bill does not do. A number of legitimate concerns were expressed that actually do not reflect what is in the Bill and what the Bill is intended to achieve. The Bill does not prevent any individual from articulating their support for the BDS campaign, or indeed any particular policy that the BDS campaign puts forward. It simply prevents public bodies and public money being used to advance that case. Any of us as individuals has a total right to freedom of speech. However offensive or difficult some of the words that some utter might be, free speech is not affected by the Bill.
The Bill also does not prevent human rights considerations from being taken into account by local authorities. The Bill makes it clear that legitimate human rights considerations, provided that they are non-country-specific, should be taken into account. I note the point made by my right hon. Friend the Member for Camborne and Redruth (George Eustice) about animal welfare. If specific human rights considerations need to be added to the Bill, we will consider that in the Lords. I also note the comments made by the hon. Member for Brighton, Pavilion (Caroline Lucas). We want to ensure that there is a robust way of ensuring that local authorities can uphold human rights on a non-country-specific basis.
I noted some of the concerns expressed about the impact on the local government pension scheme. Let me stress again that there is no damage to the fiduciary duty that trustees of the scheme will have to uphold in ensuring that they secure the best value on their investments for their members. What the Bill does do is deal with the broad principle that foreign policy should be reserved to this House. It is important to stress that when other public bodies take a stand on foreign policy, they risk vitiating the power of both the Government and the House to achieve goals for the benefit of the United Kingdom and risk creating specific community tensions.
Talking of specific community tensions takes us, of course, to the specific menace that is the BDS movement. It is of course possible for local government to consider adopting boycotts in a variety of ways, but the truth is that if we look at local government and, as my right hon. Friend the Member for Preseli Pembrokeshire (Stephen Crabb) pointed out, at the devolved Administrations, the only country that has been singled out so far for boycott, divestment and sanctions campaigns has been Israel. Let us not hide from that fact.
The reason for that is that the BDS campaign is in itself antisemitic. It is not exercising disapproval of some particular foreign policy or domestic policy decision of the state of Israel; it is saying that Israel should not exist. It is instructive, though not easy, to look at the communications that the BDS movement has issued on social media since 7 October—not one word of sympathy for the Israeli people in their suffering. Indeed, what it has said on social media, when talking of those deaths, is that “their blood”—the blood of the Jewish people; the Israeli people killed—
“is on the hands of the Israeli government.”
The BDS campaign has said that the “root cause” of this violence—the deaths on 7 October—
“must be acknowledged…Israel as the occupier.”
The BDS movement has cited a variety of politicians as what they call “partners in genocide”: Rishi Sunak, Joe Biden, Olaf Scholz and Ursula von der Leyen. Of course, the BDS campaign also continues to repeat the lie—the blood libel—that it was the Israeli Defence Forces who were responsible for the tragic loss of life at the Al-Ahli Hospital in Gaza. That is what we are dealing with, and I am very grateful to the hon. Member for Birmingham, Selly Oak (Steve McCabe) for making clear the horror that he and so many of us hold for the BDS movement.
There is an argument that perhaps this Bill is divisive and it is not wanted, particularly by many voices in the Jewish community. There are some voices in the Jewish community who have concerns, and we have listened to them, but the representative bodies that speak for Britain’s Jewish community are united in supporting this Bill. They include the Board of Deputies, which contains representatives of every Jewish constituency, Jewish organisation and every Jewish community, be it secular or religious, and the Jewish Leadership Council, which contains representatives of every political and faith tradition within the Jewish community. We have heard reference made to the increase we have seen—it is horrific to think about it—in antisemitic incidents in recent weeks. Indeed, the right hon. Member for Barking (Dame Margaret Hodge) made reference to the Community Security Trust. I have been in contact with it this afternoon and it sent me this message:
“BDS has a chilling impact on Jews, a modern reminder of anti-Jewish boycotts. It also serves to legitimise the shunning of Jews from ‘decent’ society. And having been shunned…that’s a half way house to all manner of more abusive and physical outcomes.”
So we respect the diversity of voices, but when we have such unity from those who speak for the Jewish community—indeed, the Jewish communities—of the UK, when they are so clear that this legislation is in the interests of community cohesion, fighting antisemitism and making the UK a safe house for everyone, we should treat their words with respect.
The point has been made that the specific mention in the Bill of Israel could perhaps, in some cases, engender a greater degree of polarisation and antisemitism. I know that the people who make that argument make it sincerely, but, as my hon. Friend the Member for Brigg and Goole (Andrew Percy) pointed out, sometimes we just have to stand up for what is right. If there are people who are provoked as a result of that, it is regrettable but we should not shy away from telling the truth. We should not shy away from saying that what has been going on with Gaza’s genocidal campaign against the Jewish people is something that we as a country need to stand against. When the BDS campaign has in its leadership the leaders of Hamas, we need to be clear about this evil and this menace. That is not just my argument; it is also the argument of the Jewish community organisations that I cited earlier, including the Jewish Leadership Council. In its submission to the Committee considering this Bill, it said:
“The inclusion of clause 3(7) recognises this unique nature of the BDS campaign against Israel”.
It stated its belief that if that provision were excised, as one amendment seeks to achieve,
“the very purpose of the bill would be undermined. Such a change would…convert a bill aiming to prevent anti-Israel BDS campaigns from abusing our public bodies into a tool to facilitate it.”
It is debatable, of course, whether this is the right way forward—the Jewish Leadership Council is very clear that it is—but I simply ask: after everything we have seen in the past three weeks, if this House were now to remove a specific protection for the state of Israel at this time, what message would it send? I submit to every Member of this House that we should listen to the Jewish community and the clarity with which they speak.
Chris Stephens
I thank the right hon. Gentleman for the tone he has adopted so far, as it is important that we adopt the correct tone in this debate. Does he recognise the concerns that not just Israel is mentioned in the clause? This is also about why the Government have included the Occupied Palestinian Territories and the Golan Heights. That has also aroused some comment, debate and criticism.
Michael Gove
I take the hon. Gentleman’s point and appreciate the concerns that he articulates, which are shared by a number of people, but the way in which the Bill is designed makes it clear that there is a separation between Israel, the OPTs and the Golan Heights. As the Jewish Leadership Council pointed out in its evidence to the Committee on which the hon. Gentleman served with distinction:
“This clause recognises this distinction”—
it absolutely does—
“and closes a loophole to ensure public bodies cannot remain tools of the BDS movement against Israel.”
It is also the case that, by making that distinction, the clause—and the Bill overall—reserves to the UK Government the role of maintaining, as we do, our absolute commitment to a two-state solution. As framed, then, the Bill is absolutely not in breach of international law. It enables the UK Government to speak with one voice on behalf of the entire United Kingdom in our determination to secure a two-state solution, however distant that prospect may be at the moment.
Richard Graham
I am interested in clause 3, which specifically states that the exceptions to any prohibition are:
“(a) Israel…(b) the Occupied Palestinian Territories, or…(c) the Occupied Golan Heights.”
What is the distinction between Israel and those two that means that we can still hold the Government of the day accountable for illegal settler occupations in those two occupied areas?
Michael Gove
The fact that they are listed separately and individually affirms the absolutely principal purpose of treating them individually and separately. Were—[Interruption.] I am sorry, but if Opposition Front Benchers think it is appropriate to smile, laugh and joke about this issue, I regret that. If people disagree in a principled fashion, I respect that. But the key thing is that we know there are people who have attempted to use language relating to what happens in the occupied territories—indeed, the former Attorney General, my right hon. and learned Friend the Member for Northampton North (Sir Michael Ellis), cited a number of examples of this—specifically to seek to target people on the basis of their Jewish identity, and that is wrong.
Andrew Percy
There is another point. If we accept, as everybody who has spoken today has apparently accepted, that the BDS campaign is a pernicious, antisemitic campaign, we should know that it is pernicious and antisemitic whether it is against the state of Israel or against products that come from the Occupied Palestinian Territories. The BDS campaign should be outlawed wherever it takes place. It is very simple.
Michael Gove
My hon. Friend is absolutely right and, indeed, my right hon. and learned Friend the Member for Northampton North again made it clear that in France and Germany the BDS campaign is outlawed in the way that we seek to do here. No one denies for a moment that France and Germany, under Emmanuel Macron and Olaf Scholz, are valued partners for peace and upholders of international law.
Greg Smith (Buckingham) (Con)
On international agreements, does my right hon. Friend agree that, given that the United Kingdom is party to a series of World Trade Organisation framework agreements, such as the general procurement agreement, the UK has a duty not to discriminate in its trade practices, and that to permit public bodies to engage in antisemitic BDS activities would undermine our international agreements?
Michael Gove
My hon. Friend is absolutely right and I thank him for his thoughtful contribution.
I recognise the sincerity and commitment of my opposite number, the right hon. Member for Ashton-under-Lyne (Angela Rayner). Both she and her predecessor, the hon. Member for Wigan (Lisa Nandy), have been brave and forthright in calling out antisemitism wherever it occurs. I thank her for her work and the conversations we have had formally and informally on this issue. It is for that reason that I say, with respect, that I disagree. I understand the intent of the proposal from Labour’s Front-Bench team, but I disagree, because—as they acknowledge in their own amendment for ensuring that people cannot adopt, through an ambiguous form of words, a means of preventing people from accessing kosher or halal food—there is the potential, as lawyers have been clear, for an ambiguous form of words to be used in order, without mentioning Israel by name, to make it clear that a boycott campaign is directed against Israel. I think we all have a duty to be clear about that.
The BDS movement is clear in what it upholds: an evil campaign not just to eliminate the state of Israel but to target Palestinians who work with Israeli institutions. It has been crystal clear in recent weeks in its total failure—not just a failure, but a conscious desire not to express a shred of sympathy or regret for the loss of innocent lives. It is clear about what it wants to do to sow division. It is clear that its actions lead to, and have always led to, an increase in antisemitic attacks.
Those who speak for the Jewish community in this country have been clear as well. They respect the diversity and plurality of opinions in this House. They respect the motives, they respect the feelings, they respect the strong emotions that these issues engage. But they have also been clear that they wish this legislation to pass, they wish it to pass unamended, and they wish it to pass now. I honour them in their suffering, and it is for that reason that I urge the House to reject the amendments and to pass the Bill.
Madam Deputy Speaker (Dame Rosie Winterton)
Does Chris Stephens wish to press new clause 1 to a Division?
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 10th January 2024
(11 months, 1 week ago)
Commons ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 October 2023 - (25 Oct 2023)
18:45 - The House divided: - Ayes: 228 / Noes: 284 - Question accordingly negatived.
18:59 - The House divided: - Ayes: 282 / Noes: 235 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Secretary of State for Levelling Up, Housing and Communities (Michael Gove)
I beg to move, That the Bill be now read the Third time.
I am grateful for the opportunity to move the Third Reading of this Bill. As the House will know, this Bill was introduced before the King’s Speech, in the last parliamentary Session; it is a carry-over Bill. I begin by thanking all those who took part in the consideration of this Bill on Second Reading, in Committee and on Report.
Inevitably, following on from its introduction, debate around the Bill has occurred in the dark shadow of the events of 7 October and the continuing conflict in Israel and Gaza. That is why I want to stress, as I sought to do on Report, my gratitude for the thoughtful way in which every Member of this House has contributed to debate on this Bill. While there is, I know, a difference of opinion about the appropriateness of the measures we are bringing forward, everyone in this House is committed to ensuring that we act against antisemitism, everyone in this House is committed to ensuring that we can see a peaceful solution to the conflict in the middle east, and everyone in this House is committed to a two-state solution as the means by which we can bring peace to that troubled region.
The Bill upholds a principle that was originally outlined in our 2019 general election manifesto. During the course of consideration of the Bill we have heard from a number of organisations, both in Committee and in broader public debate about the Bill, all affirming its timeliness and importance in dealing with the continuing and growing threat of antisemitism, and upholding the importance of making sure that the UK Government speak with one voice, in a united way, on behalf of all of us, on foreign policy, as a reserved matter for the Government.
In that context, it is important to deal with one or two entirely understandable and legitimate concerns that have been raised about the interplay between the Bill itself and UK Government foreign policy. I know some particular concerns have been raised about clause 3(7). I assure colleagues that the clause does not contravene in any way our foreign policy or inhibit in any way the UK Government’s taking action if we believe there is activity in the Occupied Palestinian Territories that requires to be called out.
We continue to raise, as the Foreign Secretary has recently, issues of illegal settler activity, and Lord Cameron has been clear with the Israeli Government that the UK Government are in profound disagreement with some of those actions and some of that activity. I will come on to that in just a second. I should say that the clause does not prevent the Government establishing sanctions or using travel bans against those who have been linked to blatant human right abuses. It is simply the aim of this legislation to prevent public bodies from adopting their own foreign policy, as such decisions should ultimately be the remit of the Government and this House.
Several hon. Members rose—
Michael Gove
I know, given the nature of the debate on this Bill, that a number of colleagues would like to intervene; I will try to answer questions briefly, because I know a number of colleagues would like to take part in the debate.
Richard Fuller (North East Bedfordshire) (Con)
Hypotheticals are not always helpful, but I beg my right hon. Friend’s indulgence in this hypothetical on that particular point about the interaction between clause 3(7) and UK foreign policy. UK foreign policy is clear that illegal Israeli settlements in the occupied territories are against international law. This Bill would provide that, if a pension fund were given an investment policy for expanding, say, an infrastructure fund proposal in the occupied territories, it would have no moral basis for refusing to invest, although that investment would be expanding Israeli policies contrary to UK foreign policy. Can the Secretary of State explain how to unpack that so that what he has just said is what I believe is true?
Michael Gove
It is specifically the case that public bodies, including the local government pension scheme and local authorities, should not be taking decisions that conflict with UK Government foreign policy, and we are absolutely clear that it would conflict with UK Government foreign policy if they were to engage in freelance activity of that kind. However, it is perfectly open to any representative, including any elected representative, to express their personal disapproval of the activities of the Israeli Government or any organisation that operates within the settlements.
Richard Burgon (Leeds East) (Lab)
I have been listening carefully to what the Secretary of State is saying on that point, but last year, the Government stated:
“The UK has a clear position on Israeli settlements in the Occupied Palestinian Territories: they are illegal under international law”.—[Official Report, 23 March 2023; Vol. 730, c. 412.]
To speak plainly, is not the Secretary of State ashamed that, through this clampdown on the democratic right to boycott, his Government are restricting the rights of those who want to take peaceful action against violations of international law, and are in effect siding with those breaking international law?
Michael Gove
With respect to the hon. Gentleman, who has taken a close personal interest in the conflict—I appreciate the sincerity with which he raises that point—absolutely not. There is a clear intention in the Bill, which is to deal specifically with the boycott, divestment and sanctions campaign and its attempts to use the legitimacy of local government and other intermediate institutions to undermine the UK Government’s foreign policy. The UK Government, of whichever colour, must speak with one voice on behalf of the whole United Kingdom when it comes to foreign policy matters. As I am sure the hon. Gentleman will agree, the Minister of State, Foreign, Commonwealth and Development Office, my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), and the Foreign Secretary have, from this Dispatch Box and in the other place, been clear with the Israeli Government when they think that it is appropriate to criticise their actions and indeed those of individuals operating within the settlements, but there is an important distinction to be drawn between criticism of the Israeli Government, criticism of the acts of particular individuals and the nature of the BDS campaign itself.
I am grateful to Opposition Front Benchers—although we have our disagreements—and to Labour Friends of Israel for making it clear that the BDS movement itself is explicitly and regrettably antisemitic. It deliberately sets out to argue that the state of Israel as a home for the Jewish people should not exist.
Tom Hunt (Ipswich) (Con)
I agree with the comments that the Secretary of State has just made. Israel is pretty much the only country that is targeted in this way despite the fact there are a number of appalling regimes around the world. On local authorities, does he agree that a lot of councillors should focus on their core job of running local services instead of virtue-signalling and clumsily weighing in on complex international issues?
Michael Gove
Not for the first time, I entirely agree with my hon. Friend. He summed up in that intervention two of the critical points in the Bill. First, local government has many important functions. Intervening in foreign policy in a way that can exacerbate community tensions is emphatically not one of them. Secondly, there has been a unique focus on the state of Israel. Of course, there are criticisms that can and should be mounted against the state of Israel, its Government and their activities. However, the BDS campaign singles out Israel for special treatment. We have not seen attempts by local government to criticise, for example, the actions of Bashar al-Assad in Syria or a variety of other regimes that have been targeting innocent Muslim lives.
Again, one point that was made clearly by the now sadly departed former Chief Rabbi, Lord Sacks, was that antisemitism is a virus that mutates over time. In the past, it was directed towards Judaism as a faith. Then it mutated to be directed towards the Jewish people through direct racism. Now antisemitism finds an expression through an attempt to deny the Jewish people the same right of self-determination and the same right to a homeland that we extend to all peoples.
Support for the Bill from Jewish organisations in this country—the Jewish Leadership Council, the Board of Deputies of British Jews and so on—has been clear, but perhaps the most telling are the words of the Community Security Trust, which is there to physically protect Jewish people and communities. The CST is scrupulous in not offering any commentary on matters in Israel and the middle east or on foreign policy—it eschews doing so because it recognises the diversity of views within the Jewish community on some of those questions—but it has said that BDS
“has a chilling impact on Jews, a modern reminder of anti-Jewish boycotts. It also serves to legitimise the shunning of Jews from ‘decent’ society. And having been shunned…that’s a half way house to all manner of more abusive and physical outcomes.”
When we have seen a 537% increase in antisemitic incidents, I think it important to bear those words in mind.
Stephen Crabb (Preseli Pembrokeshire) (Con)
My right hon. Friend is making some extremely important points about the nature of the BDS movement. Is it not the case that, as he says, there have been very few examples of councils looking to use the levers available to them to protest against other international issues? Is that not because the whole BDS movement—in fact, the label “BDS”—has been entirely constructed as a weapon against the state of Israel? When we look at the origins of the movement, we see, unfortunately, that it is riddled from top to bottom with antisemitism.
Michael Gove
I am afraid that my right hon. Friend is absolutely correct. Again, to be more than fair, many prominent Labour voices have made precisely that point: the BDS campaign, those who created it and those who run it are very clear that they are singling out Israel. They want to see an end to Israel as a Jewish state.
I am very conscious of the fact that a number of right hon. and hon. Members wish to contribute to the debate. I also want to emphasise again that a horror and revulsion of antisemitism and prejudice of all kinds is shared across this House, as is a determination to see peace in the middle east. We have rehearsed the arguments, with great contributions in Committee and on Report, and I believe that this Bill is a targeted and proportionate approach to dealing with a unique evil. I hope that we will be able to support the Bill, but as I say, dissenting voices in this House must always be heard with respect. With that, I commend the Bill to the House.
Several hon. Members rose—
Kit Malthouse (North West Hampshire) (Con)
Again, as I said on Second Reading and on Report, I speak with a heavy heart and in some dismay, but I tell those on my Front Bench that I will be voting against the Bill this evening.
This Bill obviously comes at a dreadful time, as we mourn the deaths of so many Israelis in heinous circumstances on 7 October and the deaths of so many Palestinians subsequently, many of whom still lie under the rubble. The fact that we in this House would seek to legislate against non-violent protest in such an illiberal and draconian way seems to me tragic at this particular point in time.
As the Secretary of State knows, there are broadly three areas in which I and other colleagues attempted to amend the Bill and have concerns. The first area is, as the shadow Secretary of State pointed out, the separate identification in the Bill of Israel, and its conflation with the occupied territories and the Golan Heights. We believe that contravenes our undertakings at the United Nations and, indeed, in international law, which of course means that the Bill will spend a lot of time in the courts, if it eventually sees the light of day. At the same time, that is a cause of great dismay to our allies in the Arab world, who of course we need at the moment more than ever to join us in seeking peace in the dreadful conflict taking place in the middle east. That we should undermine our own status as fair dealers, as it were, in that part of the world seems to me an unforced error.
The second area of serious concern is obviously the impact on free speech. Again as the shadow Secretary of State pointed out, it seems to me incredible that we are putting elected officials and others in a position where if they just stand up in certain circumstances and say they disagree with the law, they will be committing a criminal act. It seems to me an incredibly illiberal and backward step that we would strike a blow against pluralism in that way. The Bill could stand without those restrictions on free speech, and as the Secretary of State will know, we attempted to amend it to remove them, but that attempt was rebuffed.
The third area is the sheer scale of the Bill’s impact and the number of organisations that will be drawn into it. It is not just the local government pension fund, of which I am a member, but also every university in the land and private sector companies that perform a public service of some kind and are contractors to the Government that will be drawn in. That is important because, as the Secretary of State will know, this subject is very litigious. There are lawyers sympathetic to Israel and those sympathetic to Palestine. From the Secretary of State’s speech, it seems that the Bill is aimed squarely at that particular conflict in this world. Lawyers on both sides will gear up, and an industry will arise to attack, defend, analyse and scrutinise every decision, and all these bodies will have to take significant internal legal advice to deal with it as well. Subjecting them all to this enormous burden seems to me disproportionate to the problem that the Government are trying to address.
Finally, my greatest concern is for the impact on British Jewry. As the Secretary of State has said, he is trying to bring this Bill in to deal with the growth in antisemitism in the United Kingdom, but my view is that the Bill will play entirely into the hands of the antisemites. I imagine that this Bill will be manna to those rotten social media groups and WhatsApp groups that espouse conspiracy theories about Israel and the Jewish community. They will see this, as Jonathan Freedland—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I call the SNP spokesperson, with no time limit.
Michael Gove
Thank you very much, Mr Deputy Speaker. I would like to thank everyone who has spoken on Third Reading, including my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates), who was articulating the vital importance of recognising where antisemitism begins and where it ends. I also wish to thank those who spoke powerfully from a personal point of view: my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), who has only recently returned from Israel, of which she has been such a strong friend and supporter, and the hon. Member for Oxford West and Abingdon (Layla Moran). Our heart goes out to not only her family, but all those suffering in Gaza at the moment.
I wish briefly to address one misconception, which is that this Bill acts as an effective restraint—a gagging clause—on free speech. The hon. Member for Hammersmith (Andy Slaughter) talked of faith groups being silenced and so on. As the explanatory notes make clear, individuals are in no way prohibited from expressing their view, however disagreeable we might find it, on the conflict in Israel and Gaza, or from expressing a view, which I would abhor, that the state of Israel should not exist. What is clear is that only public authorities, not individuals, are governed by this Bill. The hon. Member for Warwick and Leamington (Matt Western) rightly drew attention to the importance of freedom of speech, not least on campus and with academic freedom at its heart. I can reassure him, and he can be reassured, that whatever other misgivings he has about this Bill, it is not a direct assault on the principle of free speech. It is simply, clearly and tightly drawn in order to ensure that public bodies, public authorities, cannot abuse the position that has been vested in them as corporate bodies to more broadly undermine the foreign policy of the UK or, particularly in this case, as has been pointed out by a number of hon. Members and indeed by the Opposition Front-Bench team, to give succour to an explicitly antisemitic campaign. Again, I stress there will be different opinions across the House about the best way of securing Israel and of securing freedom for the Palestinians. The fact that debates are so intense in this House reflects the care and passion that so many Members bring to that debate.
However, the Bill is explicitly about making sure that citizens in the United Kingdom, who have been targeted by explicitly antisemitic campaigns, get the protection for which the organisations that stand up for them have been asking. In the spirit of the Community Security Trust, the Board of Deputies of British Jews and the Jewish Leadership Council, I hope that as many Members as possible—
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
On that point, will the Secretary of State give way?
Michael Gove
I will not as I have only seconds left. I hope that as many Members as possible will feel that they can support the legislation.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 20th February 2024
(10 months ago)
Lords ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 October 2023 - (25 Oct 2023)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Baroness Neville-Rolfe
That the Bill be now read a second time.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, at a time of increasing global division, the effective communication of the United Kingdom’s foreign policy is vital. In order to achieve our objectives, the nation must speak clearly with one voice. It is for His Majesty’s Government alone to decide the UK’s foreign policy.
I acknowledge that the Bill is being debated at a troubling time. Although some noble Lords may disagree with the Government on certain aspects of this legislation, I hope that everyone in this House will be sensitive to the broader issues with which the Bill deals. It will give effect to an important manifesto commitment. It is vital that public bodies are not allowed to pursue policies, through their investment and procurement decisions, in order to try to legitimise a UK foreign policy that differs from that of HMG.
Some public bodies have tried to declare boycotts and divestment policies that are inconsistent with the foreign policy set by the Government. Local councils have passed motions in support of boycotts. Local government pension schemes are frequently under pressure to divest certain securities. Universities, too, have been pressurised by groups that want to impose their own views about foreign policy.
The campaign that has placed the most pressure on our public bodies is the BDS movement. It deliberately asks public bodies to treat Israel differently from any other country, and its founders have been clear in their opposition to the existence of Israel as a Jewish state. Not only is that at odds with the policy of this Government, which is to promote a two-state solution, but we have seen an increase in anti-Semitic events following on from the activities of the BDS movement. These concerns pre-date the 7 October attacks, but since then the Community Security Trust has recorded the highest-ever number of anti-Semitic incidents, alongside increasing pressure for public bodies to engage in BDS activity.
The provisions in this landmark Bill prohibit public bodies from imposing their own boycotts or divestment campaigns against foreign countries or territories. It is clearly wrong that individuals who have roles of authority in a subordinate public body can act in such ways. It is also wrong that those public bodies can act in a way that, at home, jeopardises community cohesion while sowing confusion among our international allies about UK government policy.
It is particularly noticeable that boycotts and divestment campaigns disproportionately target Israel, especially in recent months in the wake of Hamas’s despicable terror attack and the resulting conflict. These boycotts contribute to the depressing rise of anti-Semitism across the UK, as reported last week by the Community Security Trust, which recorded its highest-ever annual total of anti-Jewish hate across the UK.
This Bill was unamended in the other place. That reflects the care taken in the drafting of this legislation to ensure that it adequately prohibits BDS campaigns in public bodies, applies to the correct public bodies within its scope and provides appropriate enforcement powers. Noble Lords may wish to table amendments in Committee that can improve the Bill, and of course I am open to considering those.
I now turn to the Bill in greater detail. It will prohibit public bodies from implementing boycotts or divestment campaigns against foreign countries and territories that are inconsistent with the legal sanctions, embargoes and restrictions set by HMG. The Bill will apply to public bodies UK-wide. It provides for an enforcement regime with the power to issue compliance notices and to investigate and fine public bodies in breach of the ban.
The main provisions are as follows. The Bill will ban public bodies from considering the country or territory of origin of a product or service, in a way that indicates moral or political disapproval of foreign state conduct, when making a procurement or investment decision. It does not prevent public bodies taking such considerations into account where this is required by formal UK government legal sanctions, embargoes and restrictions. To capture the rare and legitimate occasions when territorial considerations are relevant to a procurement or investment decision, the Bill provides for a number of exceptions to its provisions. For example, the Bill will not prevent public bodies taking into account territorial considerations for reasons such as national security, labour-related misconduct, and legitimate business and financial considerations. It has been drafted to ensure that it does not have a chilling effect on investments or prevent fund managers being able to assess the political risk of investments.
The Bill will work in harmony with the Procurement Act and will support it in better tailoring the procurement framework to our country’s needs. This Bill will in no way hinder our ability, under that Act, to exclude suppliers where necessary, including where there is evidence that a supplier is involved in modern slavery practices. Public bodies covered by the Procurement Act can therefore be confident that they will be free to decide which suppliers are eligible to bid and which is the best bid to meet their requirements, taking into account all relevant factors. However, they must not base such decisions on territorial considerations in a way that indicates political or moral disapproval of foreign state conduct.
The Bill has been drafted so as not to interfere with any individuals’ or bodies’ rights under existing human rights legislation, including the European Convention on Human Rights. The Government are committed to protecting freedom of speech and are not restricting any person’s or private organisation’s right to free speech. This applies to all in their individual capacities as elected officials, and this distinction has been made clear in the Bill’s Explanatory Notes. The Bill will apply only to decisions by a public body related to its investment and procurement functions. It will not interfere with any person’s or private organisation’s rights to express a view or to protest. Accordingly, I have signed a statement of compatibility with the European Convention on Human Rights.
On the type of public bodies that are covered by the Bill, they include the devolved authorities, local authorities, local government pension schemes, universities, government departments and agencies, publicly funded schools, and cultural institutions, such as museums and theatres, which receive significant public funding. The Bill will apply to public bodies across the country. It will cover bodies in Scotland, Wales and Northern Ireland, including devolved bodies with wholly or mainly devolved functions, as well as those with wholly reserved functions. As foreign affairs is a reserved matter, we will not seek legislative consent from the devolved assemblies to apply the Bill’s provisions to devolved bodies.
Moving on to the countries and territories covered by the Bill’s provisions, I mentioned earlier that Israel is a frequent and disproportionate target of boycotts and divestment campaigns. To ensure that the Bill is effective at banning divisive behaviour, it will apply to all countries and territories, including Israel and the Occupied Palestinian Territories and occupied Golan Heights.
Another provision I wish to highlight is one that recognises the need for flexibility when there are fast-moving changes in the global landscape. The Bill includes a power to exclude a certain country or territory from the Bill’s provisions via secondary legislation. In fact, we intend to use this power to maximise our impact on Putin’s capacity to fund his war by exempting Russia and Belarus from the Bill to allow public bodies to continue to stop procurement from Russia and Belarus. This means that public bodies will be able to consider how, in line with UK foreign policy, they can further cut ties with companies backed by or linked to the Russian and Belarusian state regimes while minimising the impact on taxpayers and the delivery of public services.
At the same time, we have seen examples of public bodies making declarations to boycott and divest as far as the law allows. These are harmful even where the law does not allow boycotts and divestments and therefore such declarations ought not to be made. There is concern that recent declarations of anti-Israel boycotts, even when not implemented in practice, have driven and contributed to rising anti-Semitism. For example, in 2019, Leicester city councillors voted to boycott produce originating from the Israeli settlements in the Occupied Palestinian Territories. Similar resolutions were passed by Swansea city council in 2010 and Gwynedd Council in 2014. That is why the Bill will ban public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill, even where there is no intention to implement.
I stress that the Bill will apply only to public bodies carrying out public activity. Therefore, it will not prohibit individuals such as elected officials from speaking in favour of a boycott or divestment policy. I understand that some are concerned about how elected officials could differentiate between individuals’ statements that are caught or not caught by the prohibition. I should explain that councillors could place their authority in breach of the ban only if they were making a statement of intent to boycott on behalf of their authority. The Bill will not restrict representatives, including council leaders, from expressing their support for a boycott in a debate or on their personal social media. The Government are entirely committed to protecting free speech, and it is not our policy to restrict what individuals can say. Accordingly, I have signed a statement of compatibility of the Bill with the European Convention on Human Rights.
To ensure that the Bill is effective, we have provided for an enforcement regime that will apply to all public bodies captured by the Bill, UK-wide. The regime gives Ministers and designated regulators the power to issue compliance notices and to investigate and fine public bodies where there is evidence that they have breached the ban. This will be at minimal cost to taxpayers, and we will work closely with regulators to ensure that it does not place any unnecessary burdens on them. We will make secondary legislation setting out factors to be considered or not to be considered in determining the appropriate fine. Public bodies that do not follow the law will also be open to judicial review.
This legislation honours the promise we made to the electorate. It will ensure consistency in the UK’s foreign policy agenda, support public bodies to remain focused on their core duties, and prevent divisive campaigns that target particular sectors of our society to the detriment of our wider community spirit and cohesion. I look forward to working across the House to deliver this important legislation. I beg to move.
Baroness Neville-Rolfe (Con)
My Lords, I thank all those who have contributed to today’s debate in support of the Bill, including my noble friends Lady Noakes and Lord Wolfson of Tredegar, the noble Baroness, Lady Deech, and the noble Lords, Lord Stevens of Birmingham and Lord Verdirame. I hope to convince many more noble Lords to do the same during our Committee discussions. Valuable contributions have been made today from all sides of the House. I would like to address the main themes of what has been a hotly contested debate and some of the questions raised by noble Lords.
Anti-Semitism is often referred to as the world’s oldest hatred; unfortunately, it is still very much alive. Since the 7 October attacks, we have seen a surge in anti-Semitic incidents in the UK. The Community Security Trust recorded its highest-ever total of anti-Semitic incidents in 2023, and 66% of these incidents occurred after 7 October. Many British Jews are understandably scared. Some Jewish schools in London even temporarily closed their doors over security fears.
Now more than ever, the Government should be taking steps to stop behaviour that could legitimise or even drive anti-Semitism. This is what the Bill does. The BDS movement is pernicious and has no place in our public institutions. That is why the Bill has been widely supported by the Jewish community in the UK. It has been endorsed by the Jewish Leadership Council and the Board of Deputies of British Jews.
The reasons for this were persuasively outlined by my noble friend Lord Wolfson of Tredegar, citing some telling examples from the UN, local government, supermarkets and universities. I am very grateful to him for coming to make the case against BDS, and doing it so clearly. Boycott and divestment campaigns undermine community cohesion and can confuse the Government’s foreign policy, so it is vital that we deal with this issue as we promised in the 2019 manifesto.
We have taken care to keep the scope of the Bill narrow, so that it applies only to the procurement and investment decisions of public authorities, as defined in Section 6 of the Human Rights Act 1998. Legislation brought forward in other countries on this issue, such as in some states of the United States, has gone beyond this.
I have read the report on the Bill that was prepared by the Constitution Committee and referenced by the noble Lords, Lord Collins of Highbury and Lord Shipley, and the noble Baroness, Lady Chapman, and I thank the committee for its useful contribution to this debate. I will take the opportunity to respond to some of the points that it raised, and to tackle points that have been raised during this debate.
First, concerns were raised by the noble Baronesses, Lady Chapman of Darlington and Lady Janke, and the noble Lord, Lord Browne of Ladyton, and others, about Clause 4, which prohibits public authorities from making statements indicating that they intend to boycott or divest, or would if it were legal to do so. This provision is a vital addition to the Bill. Such statements can be just as divisive as boycotts that are implemented, and have been widely condemned by Jewish groups. As expressed by the noble Lord, Lord Stevens of Birmingham, it is vital that the prohibition also applies to statements indicating that a public authority would boycott if it were legal to do so. This is because, in 2014, Leicester City Council passed a resolution saying it would boycott produce from Israeli settlements in so far as legal consideration allowed. Community cohesion was, of course, at the heart of the party’s manifesto commitment, and that is essential to fulfilling it.
I explained in my opening remarks that that provision will not prevent elected officials, such as local councillors, expressing their support for boycotts or divestment campaigns. The distinction has been made clear in the Bill’s Explanatory Notes, so it is not necessary to state that in the Bill. The Bill will restrict individuals from making these statements only when speaking on behalf of a public authority, which do not have human rights guaranteed by the European Convention on Human Rights. The clause has been drafted narrowly and will not in any way prevent public authorities making statements on foreign policy that do not express the intent to boycott or divest.
The noble Baroness, Lady Chapman of Darlington, asked what would happen if an academic expressed their support for a boycott at the same time as their university breached the ban, and how that would be investigated. An academic would be considered to be speaking on behalf of the university in the context of the Bill only if they had a role in the university’s decision- making process for public investment and procurement decisions, which I hope deals with her point.
The noble Lords, Lord Hain, Lord Boateng, Lord Davies of Brixton and Lord Oates, and the noble Baroness, Lady Bennett of Manor Castle, among others, raised their concern that this Bill would have prohibited local authorities from boycotting South Africa in the 1980s, and mentioned their own activities at the time. However, the movement to boycott South Africa was successful because of a concerted international effort led by Governments across the world. Although public authorities played a role—
Lord Boateng (Lab)
The Prime Minister of Great Britain at the time, Margaret Thatcher, consistently opposed boycotts in every international forum and consistently opposed the role of local government, churches, trade unions and others in extolling the virtue of boycotts. She was totally opposed to boycotts. The Minister really must take care in these assertions, because what she said simply does not bear any examination at all.
Baroness Neville-Rolfe (Con)
I was going to say that, although public authorities and individuals played a role, it was by acting in concert with the UK Government that we were able to pressure the South African Government—
Lord Boateng (Lab)
The UK Government consistently opposed local authorities. It is simply not true to say that the GLC or any other local authority acted in concert with Margaret Thatcher’s Government. That is nonsense.
Baroness Neville-Rolfe (Con)
We will move on. Obviously, I agree that the history of—
Lord Hannay of Chiswick (CB)
On that point, if can help the Minister, I represented this country at the United Nations at the time and what the noble Lord, Lord Boateng, says is totally accurate.
Baroness Neville-Rolfe (Con)
We will move on. I was just going to say that it was amazing that the change happened in South Africa. I remember visiting it in the 1990s, after the change.
Baroness Jones of Moulsecoomb (GP)
I am sorry to intervene, but we cannot let that go. If that was in the Minister’s notes, they are absolutely wrong. I am afraid I think an apology is necessary.
Baroness Neville-Rolfe (Con)
I said what I said with due advice and knowledge. I take the points that have been made.
Lord Hain (Lab)
I am sorry to detain the House. Not only do I endorse everything that my noble friend Boateng said, but the American Government under President Reagan also opposed boycott action. It was only the Black Caucus in Congress forcing through the loan sanctions in the late 1980s that accelerated the decline of apartheid. Virtually every Government in Europe and right across the world, including white Commonwealth countries, opposed boycott action in every respect. If the Minister’s officials are feeding her this nonsense, she should not simply repeat it.
Baroness Neville-Rolfe (Con)
I am grateful for the comments of the noble Lord, Lord Hain. I will certainly look into this further and perhaps we can come back to it on another occasion.
Perhaps me could move on, in the interests of time, to climate change. I would like to clarify that the Bill will ban only considerations that are country-specific. It will therefore not prevent public local authorities divesting from fossil fuels or other campaigns that are not country-specific.
The Bill will not prevent public authorities accounting for social value in their procurement decisions, the reform mentioned by the noble Lord, Lord Collins— of course, we worked together on moving to most advantageous tenders; that is a change that has come about. For example, authorities might structure their procurement so as to give more weight to bids that create jobs or promote animal welfare. Moreover, the Bill contains an exception to the ban for considerations that relate to environmental misconduct, as I think the noble Baroness, Lady Bennett, mentioned.
To answer the question from the noble Lord, Lord Collins, there was official-level engagement with the devolved Administrations on the Bill’s provisions before it was introduced to the other place through the common frameworks working groups process. Senior official engagement on the Bill dates back to April 2022. The Minister for this Bill in the other place, who I saw witnessing our proceedings earlier this evening, has also engaged with responsible Ministers in Scotland and Wales. We intend to engage with Ministers in Northern Ireland now that power has been restored.
The Government have never set out to legislate without consent. We formally sought consent from all the devolved legislatures. Where the legislative consent process is engaged, we always tend to legislate with the support of the devolved Administrations and the consent of the devolved Parliaments. However, as the noble Lord, Lord Stevens of Birmingham, highlighted, boycotts and divestments against foreign countries or territories are a matter of foreign policy. This Bill relates to foreign affairs and international relations, which are reserved matters, but I am sure we will come back to this point in Committee.
I turn to the Bill’s enforcement powers. I start by clarifying that the Bill does not create any new criminal offences, as suggested by the noble Baroness, Lady Janke. They are not criminal offences. Moreover, these enforcement powers are not unprecedented: the regime is based on existing enforcement regimes, such as the powers given to the Office for Students in the Higher Education and Research Act 2017. Clause 7 is a necessary addition to the Bill to ensure that enforcement authorities have the necessary information to assess whether there has been a breach of the ban. It would not make sense to implement a ban with a toothless enforcement regime but, again, I am sure that we will discuss enforcement further in Committee.
The noble Baroness, Lady Chapman of Darlington, and the noble Lords, Lord Wallace of Saltaire, Lord Willetts, Lord Hannay of Chiswick and Lord Johnson of Marylebone, questioned why the ban needs to apply to universities. This ban will ensure that any public authority, including universities in scope of the Bill performing public functions, can maintain their focus on their core purpose rather than taking partisan stances that undermine community cohesion.
It is not appropriate for those institutions to have a corporate view on a matter of foreign policy in the context of their public investment and procurement functions. That risks stifling the academic freedom of individual members of staff to take positions on foreign policy. However, I note the comments made by the noble Lords, Lord Johnson, Lord Willetts, Lord Shipley, and others on the ONS reclassification of universities. I will come back to noble Lords on this issue in Committee, once I have consulted other Ministers.
Lord Wallace of Saltaire (LD)
My Lords, regarding public investment and private investment, a lot of our universities have very substantial endowments. Will the Minister clarify that these are well outside the Bill’s remit? When they take decisions on investment and procurement from their private investment funds, they are acting privately and not publicly.
Baroness Neville-Rolfe (Con)
That is my sense, but I will obviously check where we are. I would also make it clear that things such as conference centres and so on are obviously outside the remit. I will come back to the noble Lord on the exact definition, if I may, and we can perhaps discuss it in Committee in any event.
I will now address concerns that this Bill represents a change in the UK’s foreign policy. The noble Baroness, Lady Kennedy of The Shaws, and others, will be pleased to know that the Government have been clear throughout the Bill’s passage that nothing in this Bill changes the UK’s position on Israeli settlements. They are illegal under international law, present an obstacle to peace and threaten the viability of a two-state solution. The Government continue to urge Israel to halt settlement expansion immediately.
I reassure the House that the Government’s assessment is that the Bill distinguishes between Israel and the territories it has occupied since 1967. It is therefore compliant with UN Security Council Resolution 2334. The Government believe very strongly in the importance of complying with international obligations under the UN Charter.
Lord Oates (LD)
Could the Minister tell us how the Bill distinguishes this, because the clause applies to them all equally? Could she set that out?
Baroness Neville-Rolfe (Con)
The instructions for the drafting were to ensure the distinction and compliance. The Bill sets these out individually and I understand that it is compliant. The Government believe very strongly in the importance of compliance.
Baroness Blackstone (Lab)
The Minister says it is her understanding that this applies. I think her understanding is inadequate on this issue because there is nothing in this Bill that makes a clear distinction between the Occupied Territories and Israel itself. Perhaps she could come back to the House, or write to us all, when she has clarified this and set out exactly where this distinction is made.
Baroness Neville-Rolfe (Con)
I would be happy to do that and to discuss these clauses in Committee, in the usual way. The Bill does not break international law and will not compel any public authority—
Baroness Blackstone (Lab)
This is not just a matter of waiting for Committee; this is a matter of clearing up something very fundamental following questions that have been raised at Second Reading.
Baroness Neville-Rolfe (Con)
I made it clear that it is compliant. I will write a letter setting that out in the coming days.
As many noble Lords have said, there has been a rising problem of anti-Semitism since 7 October. I believe we now need this Bill all the more and that it is important to protect community cohesion.
I thank the noble and learned Lord, Lord Etherton, for his kind remarks and his helpful discussion on his concerns with the exception to the ban for considerations that a public body deems relevant to international law. This exception is necessary to ensure that public authorities are not forced to make a decision which could put the UK in breach of its obligations under international law. Public authorities cannot have their own subjective views on what constitutes a breach of international law. They must reasonably consider the decision relevant to the UK’s obligations under international law.
I now turn to China, as the noble Lord, Lord Wallace of Saltaire, and the noble Baroness, Lady Janke, raised the matter. The Procurement Act, which we worked on together, will further strengthen our approach to exclude suppliers where there is clear evidence of the involvement of forced labour or other modern slavery practices. This Bill will not prevent public bodies conducting due diligence and considering the location of suppliers when assessing modern slavery risk and will not prevent public bodies adhering to modern slavery guidelines. We will continue to keep our policy response under review. The Bill’s power to exempt a particular country or territory from its provisions will allow the scope of the Bill to evolve in line with the UK Government’s foreign policy.
Additionally, concerns have been raised around how the Bill will impact the ability of public authorities to protect against human rights abuses. It is the Government’s view that allowing for blanket exclusions of suppliers because they are based in a particular country, for an undisclosed period, is disproportionate and unfair on suppliers from those countries which operate fairly and ethically. However, I can assure Members of the House that the Bill will not prevent public authorities disregarding suppliers involved in human rights abuses on a non-country specific basis. Public bodies should not be pursuing country-specific campaigns.
Lord Hendy (Lab)
Can the Minister explain how that works? If a public authority decided that it would not trade with any supplier which banned trade unions or the right to strike, and, subsequently, a tender came in from China, could it or could it not, under the Bill, decide not to accept such a tender?
Baroness Neville-Rolfe (Con)
I do not entirely understand the question, but I am happy to research that and come back. The basic point is that public bodies should not be pursuing country-specific campaigns, as foreign policy is a matter for the UK Government alone—but obviously we need to understand the details in the supply chain.
Additionally, the Bill contains an exception to the ban for various considerations where the Government have assessed it appropriate for public authorities to make territorial considerations influenced by moral or political disapproval of foreign state conduct, including considerations relevant to labour market misconduct, which was a concern of the noble Lord.
Bodies that administer the Local Government Pension Scheme are captured by the definition of “public authorities” in Section 6 of the Human Rights Act 1998, and it is therefore appropriate for that decision to be captured. For example, a UN special rapporteur wrote to the LGPS in November 2021 demanding divestment from a number of Israeli companies, and the demand cited its ability to play a “transformational role”. I think we can agree that the role of local authorities is to manage the assets to deliver benefits to members.
The noble Baroness, Lady Young of Old Scone, asked whether the pension fund Nest and the PPF are in scope of the Bill. The only pension funds the Bill will apply to are those in the Local Government Pension Scheme, so they are not within scope.
There was a long conversation about the application of the Bill—which bodies it applies to. It will apply to public authorities, as defined in Section 6 of the Human Rights Act 1998. This definition has been in statute for 25 years and sets the scope for the application of fundamental legislation.
Indicative factors that were relevant to judges’ previous decisions on the issue include the body receiving a significant amount of public funding, the body carrying out acts in exercise of statutory powers and the body providing a public service. I encourage any institution that is unsure whether it is bound by Section 6 of the HRA to seek independent advice, but I have noted various questions on scope that we may come back to in Committee, because there were some useful contributions on that, including from the noble Baroness, Lady Grey-Thompson.
I clarify that the Bill’s Short Title provides a general indication of its subject matter, and it is clear that it applies only to public authorities, as defined in Section 6 of the Human Rights Act.
This legislation delivers an important manifesto commitment. It will ensure that the UK has a consistent foreign policy approach and speaks with one voice internationally. I have not had time to answer every point, but I have been listening carefully. I look forward to working with noble Lords throughout the passage of the Bill to deliver this important legislation and to continue to engage on the various knotty and important issues that have been raised today. I commend the Bill to the House.
Baroness Neville-Rolfe
That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order:
Clauses 1 to 3, Schedule, Clauses 4 to 17, Title.
Economic Activity of Public Bodies (Overseas Matters) Bill
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This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
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The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I thank all noble Lords for their amendments and for their contributions to the debate. I look forward to scrutinising the Bill and these proposed changes in detail during the four Committee days that we have set aside—although this one has been a little truncated. I remain open to listening to noble Lords’ views from all sides, and I hope we can use these sessions to put forward the best possible version of this legislation.
Clarity on all sides is important, and I look forward to further meetings with the noble Lord, Lord Wallace of Saltaire, as the Bill progresses. He knows I enjoy meetings with him on the Bills that we have done together. Probing amendments are also important, as the noble Lord, Lord Collins of Highbury, has just said. We were of course both involved with the Procurement Act and I look forward to discussing how the two pieces of legislation interact and how human rights considerations are respected—as they are.
I hope that, in responding to these six amendments, I can assure the House that Clause 1 as currently drafted is the most proportionate and clear way of fulfilling the manifesto commitment of banning public bodies from imposing their own boycott and divestment campaigns.
Clause 1 sets out three tests that must be met to trigger the ban. First, the ban is narrow. It applies only to procurement or investment decisions. Secondly, the public body must have considered a specific territory or country as part of making its decision. Thirdly, that consideration must reflect political or moral disapproval of the conduct of a foreign state.
I turn first, if I may, to Amendments 3, 4 and 5, tabled by the noble Lord, Lord Verdirame. I am grateful for his general support. However, together, his amendments would alter the scope of the clause. Amendments 3 and 5 would prohibit public authorities from being influenced in any way by foreign state conduct. This would widen the prohibition in Clause 1 to include considerations that relate specifically or mainly to a country or territory in a way that is influenced by approval of foreign state conduct. The current drafting prohibits only disapproval of foreign state conduct, and the inclusion of moral and political disapproval is necessary to ensure that the Bill does not capture legitimate territorial considerations that are not about boycotts and divestment campaigns and would take the Bill beyond the manifesto commitment. An example of this would include encouraging trade with important trading partners. These amendments would therefore prohibit a public authority from favouring goods or services from a particular country or territory, based on approval of that country’s conduct. It therefore captures a broader range of decisions that are not relevant to boycotts and divestment campaigns.
Amendment 4, on the other hand, would narrow the prohibition so that it applied only in the case of disapproval of a foreign state’s conduct within its own territory. It would not apply in the case of disapproval of a foreign state’s conduct outside its territory. I agree with the comments made by my noble friend Lady Noakes: this would effectively allow public authorities to boycott countries whose foreign policy they disapproved of. This could leave a significant loophole—a word I think she used—in the ban and undermine the manifesto commitment.
I will now address Clause 1(7) in response to Amendment 6 by the noble Lord, Lord Wallace of Saltaire, and the concerns raised by the noble Baroness, Lady Janke. This amendment would permit public authorities to engage in boycotts and divestment campaigns as long as they were only a result of pressure from a third party, such as a student union, rather than a result of the public authority’s own moral or political disapproval. Subsection (7) is a necessary element of the Bill, as public authorities such as universities and local authorities are frequently pressured to engage in boycotts or divestment campaigns. For example, student unions at Warwick University and Sussex University have passed motions calling for their universities to divest from Israeli companies. If a university conducted a boycott or divestment campaign because of such pressure, rather than because of its own view of a foreign state, we would want that campaign to be caught. Subsection (7) extends to any person seeking to persuade the public authority. However, for there to be a breach of the ban, an enforcement authority must be satisfied that there is enough evidence that a third party influenced the public authority.
I will address the comments of the noble Baroness, Lady Janke, on decision-making, if she would agree, on group 2 because we are going to be discussing the meaning of a decision-maker for the purposes of the Bill.
Finally, and most importantly, I turn to Amendments 1 and 2, tabled by the noble Lords, Lord Wallace of Saltaire and Lord Palmer of Childs Hill. Amendment 1 would narrow the scope of the prohibition in Clause 1 so that it prohibited public authorities from taking account of territorial considerations only where moral or political disapproval of foreign state conduct is the “primary or sole” factor in the decision. My noble friend Lord Leigh of Hurley asked a question which made this point, while my noble friend Lord Wolfson of Tredegar was concerned that it would increase uncertainty and lead to legal disputes.
Similarly, Amendment 2, tabled by the noble Lord, Lord Palmer, would narrow the prohibition to decisions “materially” influenced by moral or political disapproval of foreign state conduct. Like my noble friend Lord Wolfson, I do not agree with weakening the effect of the Bill in this way. Public authorities buying goods or services, or making investments, should not be influenced by moral or political disapproval of foreign state conduct to any degree, unless—and this is important—one of the exemptions, such as environmental or labour misconduct, applies.
I reassure the Committee that Clause 1 will not capture fleeting and inconsequential remarks made during the procurement or investment decision-making process. The Bill prohibits only considerations that a reasonable observer of the decision-making process would consider a contributing factor to a decision.
Lord Collins of Highbury (Lab)
It is precisely that point I want to better understand, because many decisions are going to be complex. While the Minister mentioned the exclusion of things, there could be a combination of issues which would influence the final decision. Somebody might be able to say, “Actually, that combination has become a moral and political thing”. That is what really concerns me. The Minister is very confident that certain things will not be captured, but I do not see that. I would like her to explain in a little more detail that final point she made.
Baroness Neville-Rolfe (Con)
We will try to do that. I am also happy to discuss this further, because it is obviously an important point in relation to the Bill and, as we agreed at the beginning, we need to try to find a way that does not create a lot of uncertainty.
The noble Lord, Lord Wallace of Saltaire, commented on the perceived lack of evidence for the Bill, but boycotts have been attempted by several public authorities in recent years. In 2014, Leicester City Council passed a motion boycotting goods from Israeli settlements, as far as the law allows. Several other local authorities have passed boycotting or condemnatory motions, including Swansea Council, Gwynedd Council—
Lord Collins of Highbury (Lab)
I am sorry to interrupt, but on that point can the Minister tell us what the FCDO’s advice and the United Nations decisions are in relation to the Occupied Territories?
Baroness Neville-Rolfe (Con)
I am certainly very happy to come back to that on a later group of amendments.
Lord Collins of Highbury (Lab)
But it is material to what the Minister has just said.
Baroness Neville-Rolfe (Con)
I will see if I can come back to it before we finish. I was trying to give the examples that the noble Lord, Lord Wallace of Saltaire, had asked for. There was West Dunbartonshire Council and Stirling Council, and in 2021 Lancaster City Council passed a motion in support of the wider BDS movement.
Lord Collins of Highbury (Lab)
I come back to the first point that the Minister made. It is really important that we are clear about this, because one concern we have mentioned—I am not going to make a Second Reading speech—is the impact that this Bill has on the United Kingdom’s foreign policy. If there is a discussion about goods from and investments in the Occupied Territories, she needs to explain why she has evidenced that and how it is supported by the FCDO’s own advice and the Government’s support for United Nations resolutions on that subject.
Baroness Neville-Rolfe (Con)
I can certainly provide more detail of the boycotts, if that is helpful.
Lord Collins of Highbury (Lab)
No, that is not what I am asking. The first example that the Minister gave was in relation to the Occupied Territories. I really think it is important that we understand why she has referenced that.
Baroness Neville-Rolfe (Con)
I was giving a list and I will certainly come back on that question. We have a group relating to the Occupied Territories later on, when we can go into this in more detail. If the noble Lord can give me a bit of slack, I will see if I can get fuller information and come back to that at the end.
I was trying to answer the question on evidence. If I may, I should also like to cite, from September 2023, Islington Council passing a motion in opposition to this Bill, expressing its support for BDS campaigns—which everybody has said that they are very unhappy about—and resolving to:
“Continue to ensure that our own ethical procurement strategy doesn’t include procuring goods and services produced by oppressive regimes”.
I have not covered all the BDS activity in public bodies, but I hope that this demonstrates to the noble Lord that there is a considerable evidence base.
Separately, I note the points made by the noble Lord, Lord Mann, about student unions and the provision of kosher foods in universities. We are going to discuss that point. The noble Lord has tabled some interesting amendments on it in group 3.
Lord Mann (Non-Afl)
My point was not in relation to the amendment; it was in relation to the fact that a significant number of people in the Jewish community have said to me that they anticipate one of the key benefits of this Bill being that student unions will not be able to debate and pass BDS resolutions. My understanding of how the Bill is written and how it has been framed is that what the University of Essex student union has done, whereby it deemed its policy to be an educational tool rather than a procurement decision, explicitly would not be covered by the Bill. That is important, because the expectation is coming from multiple sources within the Jewish community that that is what would happen. Can the Minister clarify whether I am wrong on this, because my reading of the Bill suggests that I am right that—whether one calls it a good thing or a loophole—it would not be covered by the Bill?
Baroness Neville-Rolfe (Con)
The noble Lord is right—student unions are not covered, and I think that I made that clear at Second Reading. It is private activity. Clearly, what matters is the influence on public bodies, which is what we are discussing today.
To come back on the Occupied Palestinian Territories, obviously the Government recognise the risks associated with economic and financial activities in those settlements. We do not support boycotts of the Occupied Palestinian Territories. Such boycotts are inherently divisive and could lead inadvertently to negative effects on Palestinians as well as undermining the aim of this Bill, which is to ensure that the UK speaks with one voice internationally. That does not change existing government guidance on doing business in those territories. The Government do not recognise the settlements as part of Israel, as the noble Lord knows, and we have already moved to ban those responsible for violence in the West Bank from the UK—there have been some recent sanctions.
I have tried to answer the probing amendments. I hope that this provides noble Lords with clarification and a rationale for the scope of Clause 1, and I ask the noble Lord to withdraw his amendment.
Lord Wallace of Saltaire (LD)
My Lords, I am slightly better informed. We have many difficulties with this Bill. I must say that it would be much easier if it were simply a Bill about boycott of Israel and mainly about sanctions. It would be narrower, and we would know what we were talking about. But it is a Bill that is supposed to apply to every single foreign state in the world except for Ireland, which raises very large questions.
I disapprove strongly of the Rwandan Government’s support for M23 in the Congo civil war, and I disapprove very strongly of Myanmar’s behaviour towards the Rohingya, et cetera. Clause 1 is entitled “Disapproval of foreign state conduct prohibited”, which is itself a very uneasy label and not the sort of thing that ought to appear in legislation. I believed that I lived in a liberal democracy in which government’s reach was limited and free speech, as Conservative Peers are always telling us, is entrenched, and one is allowed to dissent. This appears to be extending the reach of government.
I appreciate that this is a DLUHC Bill that is aimed primarily at local authorities, although it is extended to include universities—and whether it includes student unions we will investigate further. As it happens, I had the current president of the Cambridge Students’ Union here last Wednesday, and I showed him a copy of the Bill—and he was convinced that it would apply to student unions; it is quite clear that some people would like it to do so.
There is a great deal more that we need to find out about all this. The closing down of public debate that the Bill implies is something that worries all of us a great deal. I am happy to withdraw my amendment for a moment, but we shall return to all these questions extensively as we move from one imprecise clause to another.
Baroness Janke (LD)
My Lords, very many points have been made about how the decision-maker is established. From the point of view of local government, in local councils there are very many ways of taking decisions that can be individual or corporate. The tiers of responsibility and the trails that decisions make throughout a large organisation would need to be explored if enforcement action was to be taken.
In addition, councillors, committees or even pension committees, as we heard earlier, are advised by experts and independent advisers, so it is not clear where the line of accountability is and who is responsible, who is to be identified for enforcement action. The public authority, as has been identified earlier, is the body that is talked about in relation to Clause 4, but it is not in the Bill and does not relate to any other part of decision-making. I add my plea for further clarification as to how the decision-maker is to be identified and how enforcement is to be pursued in light of that.
As far as pension funds are concerned, as a former member I know that expert advisers do take account of political situations in their evaluation of risk. Again, that may be intimidating for councillors or advisers and inhibit the quality of advice that is given.
Baroness Neville-Rolfe (Con)
My Lords, Amendment 7, tabled by the noble Lord, Lord Collins of Highbury, and Amendment 55, tabled by the noble Baroness, Lady Chapman, seek clarity on whether an individual is considered a decision-maker for the purposes of this Bill. It was helpful to hear the introduction from the noble Baroness and her wish for general elucidation. As she implied, it is an important part of the Bill’s provisions. I will try to confine my points mainly to decision-makers, which are the purpose of this group.
A public authority will generally delegate responsibility for decision-making on procurement and investment decisions to individuals within the public authority. The individuals who make the decision on behalf of the public authority will do so in accordance with the public authority’s internal policies and structures. To address the noble Baroness’s question on enforcement, even when an individual is making decisions or speaking on behalf of a public authority, the ban applies only to the public authority itself. There is no personal liability for the individual. Individuals will therefore not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban in Clauses 1 or 4.
On the noble Baroness’s question on pensions—this is something I know about because I have served as a pension trustee, admittedly in the private sector—this is something we can come back to in more detail when we discuss Clause 12, but I will also look at the Local Government Association material that she referenced, which I am sure will be helpful and interesting.
My noble friend Lady Noakes made the point that there are some limited cases where individuals are the public authority in their own right. She asked for examples, so I suppose that examples would be UK Government Ministers, Ministers from devolved Administrations and police and crime commissioners. They could also be individuals such as mayors if they exercise public functions in their own right. Any individual who is a public authority in their own right is already subject to far-reaching and fundamental duties under the Human Rights Act 1998. They could be subject to court action if they restrict others’ human rights, and the duties in the Human Rights Act are much more wide-ranging than the prohibitions in this Bill. It would not be appropriate for these individuals to be pursuing policies that are not in line with the official foreign policy, which is, of course, set by the UK Government. To be clear, local authority councillors and university leaders are not public authorities in their own right.
Amendment 55 would require the Secretary of State to publish guidance to clarify in what circumstances an individual is a decision-maker before the Bill commences. We do not believe that it would be appropriate to publish guidance on this matter, as every public authority is structured differently and has different policies on how its internal decision-making process operates. As it happens, as the noble Baroness, Lady Janke, said, structures vary a lot, and that is the case.
To give the House an example, in the case of local authorities, they will have a scheme of delegations in place, with, for example, a commissioning board, which will indicate who takes procurement decisions. While the decision is made by the individuals on the board, they have been empowered to take those decisions via the scheme of delegations, and it is therefore the local authority that is the legal decision-maker in the context of the ban. This is made clear in Clause 2(1) of the Bill. Even when an individual is making decisions or speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Therefore, individuals will not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban. The concerns on this issue—
Baroness Chapman of Darlington (Lab)
What the Minister is saying is genuinely quite helpful, but I am just trying to apply this to my experience of the real world. If a councillor, say, were to make a statement or cause something to happen at a conference or something like that, the council would be held responsible as a public authority for the actions of that individual. The trouble with that, in a way, is that that would then influence the advice, guidance and training that is given to elected individuals, and then you would get the chilling effect that we are all so concerned about. Just to make sure, have I actually understood that correctly? Is that what the Minister was explaining to us?
Baroness Neville-Rolfe (Con)
I think that sounds right but, if I may, I will clarify if I got that wrong. To some extent, it is important in Committee that we actually understand what is happening. That is what, in the spirit of the noble Baroness’s question, I am trying to do. Even if a decision were delegated to individuals in a public authority, such as a commissioning board in a local authority, I think it is clear that the fine would be imposed on the public authority, not the individual.
I should briefly address why universities need to be in the scope of the legislation in response to my noble friend Lord Johnson, the noble Lord, Lord Hannay, and the noble Baroness, Lady Fox. We will come back to this on later amendments. It is an area of particular interest to a lot of noble Lords, not least because of the huge contributions people in this House make to the university sector.
However, the fact is that universities are a frequent target of the BDS movement, and some student unions —to come back to that point—have passed motions pressurising their universities to divest from Israeli companies. The Bill will ensure that universities cannot implement such policies in response to pressure from their student unions, as that would be divisive and could potentially contribute to rising anti-Semitism on university campuses, which is a concern.
Baroness Chapman of Darlington (Lab)
The Minister raised it—can she give us one example of where a university has ever succumbed to such pressure from its student union?
Baroness Neville-Rolfe (Con)
We will come back to this amendment; as the noble Baroness knows, this is an area of investigation for me, and I am trying to make sure that we have all the answers that we need and can provide the sorts of examples that she and I are used to exchanging in trying to move forward legislation in a constructive way.
On student unions, I will add a point that perhaps I should have made earlier. Student unions are usually charities and can undertake political activity only if it can be shown to support their charitable purposes, in line with Charity Commission guidance. Any questions as to whether political activity was appropriate would be considered in line with the Charity Commission’s normal processes. However, I confirm what I said earlier, that the Bill is narrow, applying to public bodies and, obviously, to investment and procurement. I hope that that addresses the concerns of noble Lords.
Lord Davies of Brixton (Lab)
The Minister used the word “pressurised”. Did she do so advisedly—“pressurised” as opposed to “called on” or “suggested”? Is “pressurised” defined in the Bill?
Baroness Neville-Rolfe (Con)
I think I used the word “pressure”. Certainly, I was reading “pressure”, but perhaps I blurred the wording and said “pressurised”. I could equally have used “influenced” or some other word. I was trying to explain what we were getting at on the education side of things.
I have a couple of examples of student union pressure, which I mentioned earlier. Warwick student union held an all-student vote in 2020 to pressure the University of Warwick to fully divest from all unethical industries and release all investments. That included divesting from companies in support of a boycott of Israel, and divesting from international companies that are complicit in violations of Palestinian rights. There was also the example of Sussex University, which I mentioned a little earlier.
Baroness Chapman of Darlington (Lab)
The thing is, though, as we are teasing out, is it not right that the Bill would not stop Warwick University student union from passing a motion in that regard? It would stop the university from acting on it, but no university has ever acted on these things. That is why we are all scratching our heads a little about what we are going to get from the Bill. It was a manifesto commitment—we understand that—but it is not our fault if the Government cannot turn their manifesto commitment into a usable piece of legislation.
Lord Johnson of Marylebone (Con)
My Lords, my noble friend the Minister was asking whether I was reassured. I appreciate that that was largely a rhetorical question, but I have to say I am not yet totally reassured. But I would be if she were able to furnish us with examples of higher education institutions succumbing to pressure from student unions to undertake BDS-style actions in relation to their investment and procurement decisions. That is really important for us as we make progress with the Bill.
Baroness Neville-Rolfe (Con)
I thank all noble Lords, including the noble Baroness, Lady Deech, for their interventions. I observe that, obviously, the Bill will make this boycotting activity by student unions almost pointless. But I say to the speakers that this is a group about decision-makers, and we are ranging widely into the debate about the exact involvement of universities, although that has been helpful in informing the next stage of this Committee.
Returning to decision-makers, perhaps I could just say in conclusion that I trust that this addresses some of the concerns of noble Lords and the noble Baroness. My officials will provide further clarification in the Bill’s Explanatory Notes, as requested by the noble Lord, Lord Wallace of Saltaire. I hope, in the light of the explanations I have given, the noble Baroness will feel able to withdraw her amendment.
Baroness Chapman of Darlington (Lab)
My Lords, that was probably a bit more helpful than I had anticipated, in that it fleshed out some of our really quite fundamental concerns. The noble Baroness, Lady Deech, made a very powerful case for why action is needed to prevent some of the antagonism and fear, and those activities that have happened on campuses and elsewhere that we all want to prevent. But this Bill does not do it: it deals only with boycott and divestment decisions. It probably brings into scope people and decision-makers that the Government did not have in mind.
The idea that people who want to campaign on these issues will suddenly stop doing so as a consequence of the legislation is fanciful because, as the noble Lord, Lord Mann, said in his Second Reading speech, they will just change the target from public authorities to others. It will not deal with some of the unpleasantness and the atmosphere on campus. That will not be assisted in any way, and the way the Bill is drafted might actually make things worse. It will not deal with campaigns to prevent certain events or not to have certain speakers. Those things are completely outside the scope of the Bill. We are focusing on universities to make this point, but similar things could be said about local government.
I am very happy to withdraw my amendment, but I think we are going to end up with this discussion on most of the groups, because the Bill is so unsatisfactory and does not actually fulfil the aims that the Government say they wish to achieve. I beg leave to withdraw my amendment.
Lord Collins of Highbury (Lab)
My Lords, I too associate myself with the comments of the noble Lord, Lord Pickles, because the noble Lord, Lord Mann, has done incredibly important work in tackling anti-Semitism and ensuring that we remove it from all of our civil life. I pay tribute to him.
I will not delay the House too long, but the important thing with these two amendments is expectations. This is the problem with the Bill. While I want to avoid going back, we have made a plea—my noble friend Lady Chapman made it at Second Reading—that we want to co-operate with the Government to implement their manifesto commitment. I am afraid that this Bill goes well beyond that and brings into question other issues.
The noble Lord, Lord Mann, is absolutely right to put these sorts of amendments down, because they address the concerns of the community. People often think when we are talking about this Bill that we are talking about consumer boycotts and consumer choice. No, we are not. It is about decisions over investment and procurement, but those decisions can involve the sorts of things that the noble Lord, Lord Mann, is talking about—and we heard an example from the noble Lord just now.
How we manage expectations is really important. I suspect that, when we go into other groups, we will hear lots of concerns about issues that go well beyond the scope of the Bill. So I hope the Minister understands why the noble Lord, Lord Mann, has put these amendments in. They are to probe, but also to say that there is a problem, there is an issue and the Bill does not solve it.
Baroness Neville-Rolfe (Con)
My Lords, I thank the noble Lord, Lord Mann, for drawing the House’s attention to two important issues with his Amendments 8 and 9. Like my noble friend Lord Pickles, who it is a real pleasure to welcome to our debate, my noble friend Lord Wolfson of Tredegar and the noble Lord, Lord Collins of Highbury, I am really grateful for all the work that the noble Lord, Lord Mann, has done.
My noble friend Lord Pickles and I worked together in my retail days, when he was a leading influence in local government and I worked to have kosher and halal food in many of the Tescos that were spreading across the country. So there were lots of conversations over food. A focus on community concerns is what much of the probing has been about this evening—but that is for another group.
I remain of the view that we need to apply this Bill to universities as we are doing, and I am committed to having a comprehensive debate and discussion on the impact of the Bill on universities at the appropriate moment later in Committee.
As we have heard, the two amendments in this group would add two stipulations to Clause 1. Amendment 8 intends to ensure that the prohibition applies to a decision made by a university to enter into a commercial partnership with another university or research university in a foreign state. The prohibition in the Bill already covers higher education providers in their public functions, including when their procurement and investment decisions form part of a research collaboration. Decisions relating to a commercial partnership are, however, likely to constitute a private function—for example, a decision relating to a research partnership to develop a new product funded by a pharmaceutical company. The ban applies only to public authorities’ public functions, as we have heard, and private decisions are rightly out of scope of the Bill. I note what the noble Lord, Lord Mann, says, but it would be inappropriate to apply the ban to private functions, and it would take the Bill beyond the manifesto commitment.
We have been clear in the Explanatory Notes that Clause 1 is not intended to prevent a higher education provider deciding to terminate a collaboration with a foreign university on the grounds of academic freedom, if they deem it necessary in line with their statutory duties in Part A1 of the Higher Education and Research Act 2017 or other legislation. The Bill is about ensuring that universities and higher education institutions do not have a corporate view on a particular matter of foreign policy when making their investment and procurement decisions. It is right that the Bill does not stray into decisions that could threaten academic freedom, as helpfully highlighted by the noble Lord, Lord Stevens of Birmingham, who spoke at Second Reading. I am sympathetic to the points that the noble Lord, Lord Mann, is making, and the Government do not support academic boycotts, but this Bill rightly does not interfere with academic freedom or private activity.
I turn to the points made by the noble Lord, Lord Mann, about the Jewish community’s support for this Bill. The Jewish community in the UK is widely supportive of the Bill as drafted. Russell Langer, head of policy at the Jewish Leadership Council, provided the following statement in support of the Bill’s restriction on universities’ economic activities:
“Higher education institutions continue to come under pressure to adopt BDS policies ... This legislation will be a valuable tool in assisting our higher education in rejecting this effort”.
The Bill will sit alongside other measures that the Government are taking to protect academic freedom. The Higher Education (Freedom of Speech) Act 2023 will ensure that freedom of speech is protected and promoted within higher education in England, and it will strengthen existing freedom of speech duties and directly address gaps in the existing law. Without action to counter attempts to discourage or even silence unpopular views, intellectual life on campus for staff and students may be unfairly narrowed or diminished, which is why there was a commitment in the 2019 manifesto to strengthen this.
Lord Wallace of Saltaire (LD)
The Minister has just said that we need legislation to silence unpopular views. I have to say that, as a liberal, I find that one of the most illiberal things that we could consider doing. Did she mis-speak?
Baroness Neville-Rolfe (Con)
I am not sure that I said exactly that. However, there obviously is a problem in campuses and elsewhere with BDS, and that is what this Bill is about. I shall move on to Amendment 9.
Baroness Deech (CB)
If I can help the Minister, what we need to silence is hate speech. The law is reasonably clear. It is not wholly clear—there is a blur between unpopular views and hate speech—but it has been settled for a long time that hate speech is not allowed. My test for this is when you hear something and it uses the word “Zionist” or “Jew”, if you remove that word and replace it with, let us say, “black” or “Asian”, it is then usually pretty clear that what you are dealing with is hate speech or racist speech.
Baroness Neville-Rolfe (Con)
I thank the noble Baroness for her intervention. These are difficult issues.
I turn briefly to Amendment 9, which would ensure that the prohibition in Clause 1 applied to decisions relating to the procurement of food prepared in line with religious practices, such as kosher and halal foods. The ban established by the Bill applies to all procurement decisions, including the procurement of food where this is part of a public function. Therefore, if a public authority made a decision not to procure kosher food and that decision was influenced by moral or political disapproval of the conduct of the State of Israel, the Bill would already prohibit this. However, I reassure noble Lords that nothing in the Bill would stop a public authority providing food that accommodated the religious beliefs of its employees or its service users. For example, it would not stop a public authority specifying in a tender that it was procuring halal products. For these reasons, I ask the noble Lord to withdraw his amendment.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 17th April 2024
(8 months ago)
Lords ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: HL Bill 38-II Second marshalled list for Committee - (15 Apr 2024)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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Baroness Chapman of Darlington (Lab)
My Lords, I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Noakes, for their amendments in this group. They are incredibly helpful. What we are trying to do here, as the noble Baroness, Lady Noakes, has just said, is elicit some certainty from the Government on behalf of those organisations which might find themselves drawn into the scope of this Bill. Even though they may not consider themselves to be public bodies ordinarily, they might find that they are when it comes to this Bill. We will come later to an argument about whether universities should be treated as public bodies and we feel, as we said at earlier stages, they should clearly not be. But that is not the only area where we feel that the Government have not thought sufficiently about what they are trying to do.
Amendment 11 from the noble Baroness, Lady Noakes, would, as she explained, apply the definition in the Freedom of Information Act. That would settle this to a large extent, in that we are clear about who is and who is not subject to that Act. It would be interesting to hear whether the Government are minded to welcome that suggestion because, from what the Minister has said on previous occasions, all the instances that she has referred to as justifying the need for the Bill would probably be covered. I am not sure why the Government do not just welcome that, to be honest; it does not answer all of our problems, but it would go some way towards that.
The introductory speech of the noble Lord, Lord Wallace, was incredibly helpful and his amendments likewise. He concluded by saying he suspects that the Bill is actually performative in nature and worries that the operability is not at the forefront of anybody’s mind in government. I have no idea how true that is, but I share his concern that it is the job of this House to make sure that we do not pass legislation that is unworkable and just causes confusion.
Our Amendment 14 is probing and I accept what the noble Baroness, Lady Noakes, had to say about it. But we are just trying various ways in this group—and in the next, too—to work out which organisations will be subject to these new rules. The example that has been helpfully provided to me by Universities UK was the one that led to the tabling of our Amendment 14.
If the Government get their way and universities are to be treated as public bodies for the purposes of this Bill, although I very much hope not for any other purpose, their activities that we could argue are clearly outside their publicly funded responsibilities—those conducted, perhaps, with private money or are contracted to private companies—would in no way be subject to the rules within the Bill. There is a reference that makes this clear in the Explanatory Notes, but the amendment that we have suggested would put that explanation into the Bill. As I said, it is to probe exactly what the situation would be because, at the moment, universities are not clear about that and it is important that we give them that certainty.
An example was suggested to me by Universities UK. It is hypothetical but not so outlandish that this situation is not happening very frequently. I declare an interest as chancellor of Teesside University. Here is the hypothetical example: university A is considering a proposal to set up a transnational education partnership in country X. This could involve a partnership with a commercial or state entity in country X and the university board must consider a range of proposals. According to the Higher Education Code of Governance, governing bodies should
“conduct their affairs in an open and transparent manner”.
It is a fundamental duty of university governing bodies to safeguard and promote the reputation of the institution. As the new partnership would involve a significant investment and carry both financial and reputational risks, the board of university A is therefore asked to take a decision on the proposals.
To support its deliberations, the board would receive a paper covering the following: the potential financial exposure and opportunity of each proposal; underlying social, demographic and economic data that underpins a market assessment; due diligence on potential partners, including reputational factors; and a summary of ethical and reputational concerns relating to country X. All aspects of the paper would be deliberated by the board. Following an extensive discussion of the financial and reputational impacts of the proposals, the board decides not to proceed with the partnership opportunity because, on balance, the risks are deemed to outweigh the opportunity.
Can the Minister explain whether, in this example, the transnational educational partnership described constitutes a private or public activity of a university? Would the fact that the board discussion included reference to reputational and ethical concerns of direct relevance to a higher education institution mean that members of the board could be subject to action under the provisions of the Bill?
How can boards fulfil their duty to safeguard and promote the reputation of their institution if they are not able to openly discuss and consider material facts that could impact on said reputation without fear of legal action, even if those considerations are not the sole basis for the eventual decision? How can boards fulfil their duty to conduct affairs in an open and transparent manner if the very fact of discussing issues of demonstrable and material relevance would be actionable under the provisions of the Bill?
I raise this example to tease out some of the grey areas that we might be forcing universities to consider and because I am worried about the chilling effect this may lead to. I do not think there is a situation in which a university would not consider the reputational impact of a partnership. But I can conceive of a situation where that consideration would not be as open and as widely shared as we have come to expect, in the way that we would like things to be done in this country.
In this group, we would like to understand the Minister’s response to the amendment from the noble Baroness, Lady Noakes, in particular, on whether there might be any other way of making clear who is subject to this. In relation to my Amendment 14, I would like to understand exactly how this will work for organisations—not just universities, but others as well—particularly in relation to the example I raised.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I am grateful for the thoughtful contributions from across the Committee. On the first day of Committee, which also touched on the scope of this Bill, we heard from the noble Lords, Lord Collins and Lord Wallace, the noble Baroness, Lady Fox, and my noble friends Lady Noakes and Lord Johnson. We discussed the Bill’s application to hybrid public authorities. Today, we have heard in slightly different terms from the noble Lord, Lord Wallace, my noble friend Lady Noakes and, of course, from the noble Baroness, Lady Chapman. I will try and come back on her essay question if I can.
Obviously, we have carefully considered the points raised in these debates. I would like to expand on our view of the scope in relation to Amendments 10, 11, 12, 13 and 14. As noble Lords have said, the Bill will apply to public authorities, as defined in Section 6 of the Human Rights Act 1998. I would like to explain, in response to the concerns of the noble Lord, Lord Wallace of Saltaire, that “public body” is a general term with no single legal definition. The Bill’s Short Title provides a general indication of the subject matter of the Bill, and it is not unusual for the Short Title to use different terminology from the Bill’s substantive provisions.
Lord Wallace of Saltaire (LD)
My Lords, I apologise for interrupting. The Minister will be well aware that there is a particular use of the term “public body” by the Office for National Statistics, which means that debt incurred by a public body is counted as part of the national debt. That means that whether or not some of these hybrid public authorities are defined as public bodies matters a great deal to their financial planning. Again, the university sector is particularly concerned about this.
Baroness Neville-Rolfe (Con)
I thank the noble Lord for raising that point again. It has been raised before and I am aware of it. We are talking about quite marginal sums here, so it will not be definitive, but I am sure we will come back to that point.
Perhaps I should explain that we have used the HRA definition because it has three important advantages. First, it is one that has been on the UK statute book for over 25 years, as has been explained, and places public authorities under important fundamental obligations that they have to observe. Organisations should also already know how it applies to them. Secondly, over those 25 years, the courts have further clarified its scope and identified a number of relevant factors. These include, but are not limited to, the body receiving a significant amount of public funding, the body carrying out acts in exercise of statutory powers and the body providing a public service. Thirdly, the definition ensures that private activity remains out of scope of the Bill—private activity that is rightly protected by convention rights, including freedom of speech.
Baroness Chapman of Darlington (Lab)
I am grateful to the Minister, but I am completely unclear about what a public body is after listening to that. Could she explain what a public function is? That might help us.
Baroness Neville-Rolfe (Con)
That is a good point and a good question. The noble Baroness also gave a good example. I suggest that I take away the distinction regarding the public function and have a look at it, and that I come back on the long example she raised, which she said had been given to her by Universities UK, on 7 May when we are due to debate the university amendment in Committee.
Baroness Chapman of Darlington (Lab)
I sort of accept that, but while my example referred to universities we could equally apply it to other organisations as well. I would not want to see that consideration narrowed just to the issue of universities.
Baroness Neville-Rolfe (Con)
I agree with the noble Baroness; that is an entirely fair point. We agree that the Bill is complex when it comes to understanding. I want to make sure that, when I answer questions on things such as public functions, I am giving good information that is thought through and thoughtful. I have tried to explain today why we are using the Human Rights Act. That has advantages, which is why the Government have gone down that road.
I should respond to the point about cultural institutions that the noble Lord, Lord Wallace, raised. Some of them are in scope of the Bill in their public functions only, and I set out earlier a number of factors that courts would consider in deciding whether an act was a public act. The noble Lord also pointed out that the Bill contains the power to exclude bodies in its scope from the ban via regulations. The Government do not currently foresee the need to exclude such bodies, but this power will allow the Bill to evolve in line with government policy.
For all these reasons, I have tried to explain why we have presented the Bill in the way that we have. There is a lot of comfort to be taken from using the Human Rights Act, but I look forward to returning to some of the questions that have been asked. In the meantime, I ask noble Lords not to press their amendments.
Baroness Blackstone (Lab)
If I may intervene, this definition debate is like walking through a giant sticky pudding. Most Members of the Committee are utterly confused about exactly what public bodies and public authorities are, and about which institutions will be in the scope of the Bill and which will not.
I shall raise a specific example. Could the Minister tell the House about housing associations? They undertake many public functions, which is another term that the Minister introduced but has not been properly defined. They deliver social housing, for example. They do so in partnership with local authorities, often managing the social housing that is owned by local authorities. Will they be in scope of the Bill or not?
Baroness Neville-Rolfe (Con)
The answer I must give in the short term is that it depends a lot on the courts. I will look at housing associations; I know they have come up in other Bills that we have discussed, including how they are treated in government finance. The point about using the Human Rights Act definition is that you get a 25-year history of interpretation.
Baroness Randerson (LD)
My Lords, the Minister referred to the issues of public funding associated with universities and the national debt, and how that is counted. She said that these were marginal amounts of money. The UK university sector is worth £130 billion a year to the economy and employs three-quarters of a million people. Is that truly the definition of marginal? I declare an interest as chancellor of Cardiff University. Secondly, when we are looking at cultural organisations, does lottery money count as public or private money?
Baroness Neville-Rolfe (Con)
The honest answer is that I do not know about the lottery, but I will find out for the noble Baroness and write to her. On universities, of course she is right: very substantial sums of money, rightly, are involved in the education of our children. What I was explaining was that, at the margin of this activity—involving procurement and investment—the sum is relatively small compared with all that is done by universities.
Lord Stevens of Birmingham (CB)
May I offer a constructive suggestion on the clarity that might be adduced between now and further stages? Picking up on the question of the noble Baroness, Lady Blackstone, as I understand it, in 2003 the first case before the court to answer the question was Poplar housing association, where it was deemed that Poplar was a functional public authority under the Human Rights Act. That takes us to the useful report that was referred to by the noble Baroness, Lady Noakes, from the Lords and Commons Joint Committee on Human Rights back in 2003-04, entitled The Meaning of Public Authority under the Human Rights Act, which gets to the very matter we have been discussing. Obviously, jurisprudence has developed substantially since then. If the Minister could set out in writing how the Government regard the situation as having evolved since this very clear statement of the answer to the question we are struggling with this afternoon, that would perhaps nail the matter.
Lord Boateng (Lab)
The Minister has been enormously forbearing and we are very grateful for that. I wonder whether she could help us in this regard in relation to cultural bodies—here I must declare an interest, as an independent non-executive director of the Royal Philharmonic Orchestra. What would be the position of an orchestra that received some funding—by no means the majority of its funding—from the Arts Council, and which determined that, in the aftermath of an invasion of a sovereign nation by another sovereign nation, it no longer wanted to perform supportively of, say, the Bolshoi Ballet? What would be the position of such an orchestra, or of a board, that made that decision because it saw a real reputational risk, in the aftermath of the invasion of a sovereign country, of appearing in support of the national ballet company of the invading nation?
Baroness Neville-Rolfe (Con)
I understand the question. Of course, we now have government sanctions against Russia, so the question is wider. The suggestion made by the noble Lord, Lord Stevens, is a good one, which would perhaps help us to move forward. I have already said that I will look carefully at the questions raised by the noble Baroness, Lady Chapman. The example of the noble Lord, Lord Boateng, is of a slightly different kind, asking rather the same question. Perhaps I can come back on that at the same time.
Lord Hain (Lab)
May I also ask a question? I am very grateful to the Minister, who has indeed been generous in responding, even if she has been unable to offer the Committee further clarification. Virtually all training in this country is privately provided, by private organisations, but publicly funded. Where do they fit into all this? They receive public money—from the DWP, say. I remember, as the former Secretary of State, visiting a lot of private providers. Where do they fit in? Do they come under the contractual relationship to which the Minister referred, or are they caught by the Bill?
Baroness Neville-Rolfe (Con)
It depends, and it also depends on case law under the Human Rights Act, which I have undertaken to look at and come back to noble Lords.
Lord Wallace of Saltaire (LD)
My Lords, I cannot resist suggesting that one definition of a “public function” is somewhere you are served warm white wine and canapés. That is a suggestion of how loose some of these terms can be.
The concern that a lot of us have about the Bill is that we are not entirely confident that the Government have thought through its full implications. The manifesto commitment was specific to boycotts against Israel and was concerned particularly with local authorities and universities. But we have a Bill here with a much wider set of definitions and a universal set of foreign states to which it applies, which raises a much larger number of questions. We also have a whole succession of loose definitions, which the DLUHC memorandum to the Delegated Powers Committee says, in effect, that we should not worry too much about, as we will do this all with regulations. I hope that the noble Lord, Lord Hodgson, would think that it is not necessarily always a good idea to leave everything to regulations. We are asking for greater clarity, certainty and, above all, precision, and a more limited potential scope for the Bill.
Baroness Neville-Rolfe (Con)
Before the noble Lord sits down, I will repeat the point that the Bill applies only to investment and procurement decisions, as everyone understands. We are trying to find a way forward on a manifesto commitment to ban public bodies from imposing their own direct or indirect boycotts or disinvestment or sanction campaigns against foreign countries. Obviously, we need to discuss a little further how we deal with that, but I reiterate the point that I made about the use of the Human Rights Act, because we are trying to be helpful by calling on existing case law. The concern that I had about the amendments we are discussing today is that they might extend the Bill in a way that was not exactly where the Committee seemed to be coming from. I look forward to further discussions on this key matter.
Lord Stevens of Birmingham (CB)
I take the point that the noble Baroness, Lady Blackstone, just made in respect of schools, but I also agree with the point the noble Baroness, Lady Noakes, made about the jurisprudence that has arisen, which has clarified this for a number of institutions, including, I think the right reverend Prelate the Bishop of Manchester will find, the Church of England. In fact, I believe the first case to test whether a body in the Church was indeed a public authority was Aston Cantlow Parochial Church Council, which was trying to exact a chancel repair charge. In the Appellate Committee of the House of Lords at the time, the noble and learned Lord, Lord Hope, deemed that the parochial council was not a public authority. Many details have been laid out by the courts quite clearly over the years, but if the Government could adduce that on to a single sheet of paper in the way that has been described, it would be very helpful.
Baroness Neville-Rolfe (Con)
My Lords, as I set out in my response to the previous group, the Government chose to apply the ban to public authorities as defined by Section 6 of the Human Rights Act 1998. It is a great advantage that your Lordships, perhaps in contrast to the other place, scrutinise Bills in this way. I cannot accept that it is a sloppy Bill—it is a good Bill—but I think that concerns have been overstated. My noble friend Lady Noakes just explained why, very eloquently. We need clarity. Most bodies know whether or not they are covered.
There is another good reason for using the Human Rights Act definition—obviously, I am happy to look further at its implications, as I have said—which is that the Government intended to apply the Bill to a broad range of bodies when they are exercising public functions. This was to ensure a consistent approach to foreign policy across the UK’s public institutions, to stop public bodies legitimising divisive campaigns, which can undermine community cohesion, and to allow public bodies to focus on their core purpose when engaging in procurement and investment. That was the intention of the manifesto commitment that I mentioned in the previous group.
These amendments seek, rightly, to probe the scope of the Bill’s definition of public authorities, but they also probe the need for the power to make exceptions to the ban. I will try to address each in turn.
I am very glad that the right reverend Prelate the Bishop of Manchester has joined the debate. The Church of England would be in the Bill’s scope only to the extent that it exercises public functions. We have heard a little about the interpretation of that in the courts.
Before I address the specific amendments, I remind the Committee that the Bill will not create any new criminal offences. That is a very important point. I also take this opportunity to address the point raised by the noble Lord, Lord Boateng, and the noble Baroness, Lady Chapman, which was picked up by my noble friend Lord Deben, on orchestras. Orchestras are very unlikely to be regarded as public authorities. Moreover, withdrawing from an event is unlikely to be regarded as a procurement decision for the purposes of our Bill. The definition of a procurement decision does not include contracts where it is the public authority providing the service.
I can also reassure the noble Baroness who raised the issue that defence contracts are also exempt from the Bill. In addition, for contracts in scope, the Bill already contains an exception to the ban for national security considerations. In practice, if a case is reported to an enforcement authority it will look at whether the public authority had regard to any of the exemptions to the Bill—for example, the national security exemptions —during the decision-making process. Evidence of this might include if the public authority shows that it was following guidance from the UK Government, or became aware, for example, that a supplier was engaged in espionage.
Amendments 26 and 23 probe whether charitable organisations would come under the Bill’s scope. Charities would be captured by the ban only if they were performing public functions. It is the Government’s understanding that most charities will not be covered by the Bill. I hope that provides reassurance to noble Lords.
Lord Collins of Highbury (Lab)
I am sorry to interrupt, but I was just checking the relevant parts of the Bill relating to enforcement. The Minister said that no new criminal actions arise from the Bill. What we do have is the ability of the Secretary of State to have enforcement powers that include monetary penalties. If people refuse to pay the monetary penalties, what would that result in?
Baroness Neville-Rolfe (Con)
Perhaps I might continue on the points raised in the debate and come back to that point. It is a very reasonable question but I am not going to answer it without advice. However, there are no criminal sanctions in this Bill, which there often are in the Bills we consider in this House.
There may be a small number of cases where charities are delivering public functions; they would therefore be captured in respect of those functions. However, it is important to note that it does not mean that a charity is a public authority just because it is in receipt of public funding.
The Bill will not apply to charities’ private functions. For example, for universities, decisions that are part and parcel of delivering higher education would be public functions so they would be in scope of the ban. If a charity did have public functions in scope of the ban, it would apply only to investment and procurement decisions made within the public functions. That is a point that I need to emphasise. Therefore, the ban would not restrict how such bodies decide, for example, to distribute humanitarian aid, which was the subject of the earlier debate.
Lord Boateng (Lab)
I think the Minister, or those who advise her, has misunderstood the point I raised in relation to the orchestra. The orchestra is putting on a concert version of “The Rite of Spring” as part of a Stravinsky festival. That festival is being held in a number of cities throughout the world. It is booked to appear at the new opera house in Dubai. It puts out a tender for ballet companies to provide the dance section of “The Rite of Spring” for this concert version. It specifically precludes in its procurement—so perhaps those who advise the Minister can reflect on this—the national ballet company of a country that has recently invaded a sovereign nation because it does not wish reputationally to be linked with that national ballet company. That is quite clearly a procurement. Is the Minister saying that that would not be covered by the Act and that the fact that the orchestra concerned receives a proportion of its funding from the public purse does not make it fall within the ambit of the Act? It is to that question specifically that an answer would be helpful. If she cannot give that answer, it demonstrates very clearly the concern about ambiguity that all contributors to this debate have articulated.
Lord Boateng (Lab)
That is what we want an answer to: is it a public authority for that purpose because it receives public funding?
Baroness Neville-Rolfe (Con)
I am glad that we have focused on an individual example because, in my experience, this always helps us to clarify our own thinking. I think that, if the noble Lord, Lord Boateng, will allow me, I will take the orchestra example away, along with the example given by the noble Baroness, Lady Chapman, work out the right approach and get back to noble Lords, perhaps in discussions outside the Chamber.
We all want the same thing: to make sure that the Bill applies to the right bodies in the right way. That is what we are seeking to do, which is why we started with human rights legislation, which is often a popular start, for good reasons, to legislation. However, we have, as we do, scrutinised the detail of legislation today and have come up with some extremely good questions. It behoves us to go away. I am sure we can find good answers and use them to improve the Bill, which is, as I said when I introduced the Bill, what we are determined to do to get a good Bill that leaves this House in the right place and delivers on our manifesto commitment.
I turn now to Amendment 25, which seeks to probe whether a national governing body of sport that is in receipt of public funding would be in scope of the Bill. It raises some of the same questions and issues that we are going to consider. It is possible that a governing body of sport could be in scope of the Bill. If a sporting body is considered to be a public body under the Human Rights Act, on the basis that it exercises some public functions, the ban would apply only to the public functions exercised by that body, but a sporting body being in receipt of public funding would not in itself be enough for it to be considered a public authority. These bodies play a significant public role.
Baroness Chapman of Darlington (Lab)
We have got the public function thing again, which the Minister has referred to frequently. She has clarified that public funding is part of what will determine whether the sporting governing body is a public body, but she said that would be relevant only in the conduct of public functions. I am not clear on this, given that at the end of the previous group we were promised a response on what a public function is. I think the Minister said that she would follow up in writing, but she is relying on that term frequently in her response to this group of amendments, which I do not think is helpful, unless she can say something at this stage about what she considers a public function to be.
Baroness Neville-Rolfe (Con)
The noble Baroness is right that we need to use the term “public function” with care and to be entirely clear what it means, but the receipt of public funding is another legitimate issue that we need to understand—and understand the scale as well.
Baroness Chapman of Darlington (Lab)
As an example, if a young people’s badminton team were to be taking a tour of south-east Asia and felt it did not want to take part in events in certain regions of China and came under some pressure on this from parents or other groups, how would that be? You could say that enabling young people to engage in sport is perhaps a public function. I do not know. How would that be considered?
Baroness Neville-Rolfe (Con)
That example would not be procurement or investment, so it would be outside the scope of the Bill. However, the noble Baroness has raised the point. Sporting bodies can be within scope, as I explained, in procurement and investment decisions. The reason for this is that these bodies play a significant role in public life and it would send a very unhelpful signal if we were to single out governing bodies of sport as an exception to the Bill.
Baroness Chapman of Darlington (Lab)
I am sorry to keep on about this, but there is then a need to define procurement. In the example that I am, perhaps tenuously, relying on, there would surely be procurement of transport services, accommodation services, catering services and venues.
Baroness Neville-Rolfe (Con)
It seems to me that the issue here is boycotting a sporting event, and that is not a procurement or investment decision—but I have already undertaken to look carefully at these individual examples, because we all want to understand exactly what we are talking about and to come to the right outcome.
Amendment 24 would carve out community interest companies. While it is not inconceivable that a community interest company might perform a public function, neither the purpose nor the structure of a community interest company naturally lends itself to that. It is not, by and large, what the Bill is designed for.
Amendment 22 seeks to probe whether schools and early years providers, such as nurseries, are in scope of the Bill. I can confirm that all publicly funded schools will be captured by the ban when they are performing public functions, and some early years providers will also be public authorities on that definition. Other early years providers may be captured to the extent that they are performing a public function. However, I will take noble Lords’ concerns on that issue away, because I think it comes into the same category as the other two examples we will be looking at.
Privately funded independent schools—and I think this will probably apply to private universities—will be captured to the extent that they perform a public function. However, they are unlikely to perform functions of a public nature in scenarios where they are captured as hybrid public authorities, which we discussed on the previous group. The ban will ensure that publicly funded schools remain shared spaces for all, and the Bill will ensure that schools and early years providers can remain focused on their core duties, rather than being distracted by divisive campaigns promoted by BDS and others.
Lord Deben (Con)
If a Church of England or Catholic school says it will not buy from a country that is persecuting Christians, that is concentrating on its core responsibility. It is not avoiding it; it is what it is there for, which is to uphold the faith. Are we really going to dictate whether or not it should make that decision?
Lord Roborough (Con)
My Lords, the Minister has an advisory speaking time of 20 minutes. May I respectfully suggest that we leave any further interventions until the end to allow the Minister to answer as many of the existing questions as possible?
Baroness Neville-Rolfe (Con)
I have already said that I am trying to answer the many questions noble Lords have asked. There have been a great many interventions on me and I have been very patient. I have also made some undertakings to try to clarify some of these points, including childcare, which would cover the schools that my noble friend Lord Deben mentioned.
Perhaps I could turn to Amendment 54, which requires
“the Secretary of State to provide a comprehensive list”,
of the bodies in scope
“before the provisions in Clause 1 can be brought into force”.
The Government are not able to provide a comprehensive list of bodies captured by the Human Rights Act definition. However, I have tried to be clear on the categories of bodies that includes. To repeat, these include: central government agencies and non-departmental public bodies; UK Government Ministers and devolved Ministers; local authorities; administering authorities of local government pension schemes; universities and higher education providers with public functions; publicly funded schools; and some museums and galleries in receipt of significant public funding.
As with any definition, there will be further cases at the margins where it is impossible to generalise without the full facts of a case. That, of course, is where the courts come in. Legislation often uses general definitions—for example, the Human Rights Act from which we have taken the scope or the scope of bodies covered by obligations under public procurement legislation.
Finally, I turn to Amendment 14A. This would remove from the Bill the powers granted to the Secretary of State to amend the schedule to make exceptions to the ban for certain bodies, functions and types of considerations, and to amend or remove regulations made under these powers. I understand concerns about the use of subordinate legislation—the noble Lord knows that—and we are lucky that we have such a good committee to supervise its use. However, these powers are necessary to ensure that the ban can evolve over time and operate as intended, for example in response to emerging global events.
I assure the noble Baroness, Lady Chapman, that the FCDO is fully supportive of this legislation, and all regulations made under this Bill would follow the normal procedure of cross-governmental clearance and, of course, be approved by the Foreign Secretary. In the event that in future the ban has unintended consequences for a certain public authority, it is right for the Secretary of State to have the power to exempt that body, or a function of the body, from the ban via statutory instrument—I think today’s debate shows that that is necessary—and this would be subject to affirmative resolution by both Houses.
These powers will also allow the Secretary of State to exempt certain types of considerations from the ban. For example, Ministers may decide to exempt a narrow type of consideration to ensure the ban can evolve in line with government policy. The powers future-proof the legislation to ensure the ban can continue to operate effectively and mitigate against any unforeseen circumstances.
Before I close, I should perhaps address the point made by the noble Lord, Lord Deben, on the environment. The ban applies only to decisions that target a particular country or territory. For example, environmental campaigns, including ones against fossil fuels that are not country specific, are outside the scope of this Bill. I also reassure my noble friend that the power in Clause 3 cannot be used to remove any exception to the ban in the Bill as passed by Parliament. There is a schedule the noble Lord can look at, which includes environmental misconduct, which we are coming on to discuss.
I hope, finally, to address the point raised by the noble Lord, Lord Davies of Brixton, with regard to why there is a separate clause in the Bill for local government pension schemes. The administering authorities for local government pension schemes are public authorities under Section 6 of the Human Rights Act. Capturing administering authorities of LGPS in a bespoke provision means that the Pensions Regulator can use its existing powers and procedures to enforce the BDS ban for the administering authorities of LGPS. That avoids the Pensions Regulator setting up a separate enforcement system for the Bill. I am happy to have a discussion with him; we often discuss pensions issues which are of limited interest sometimes to the whole House.
I hope that my response to this group of amendments —importantly, alongside the undertakings I gave in response to my previous group which we expanded a little to bring in telling examples—will help the Committee to understand why we have chosen the Human Rights Act definition and I ask the noble Lord to withdraw his amendment. I look forward to further discussion.
Lord Collins of Highbury (Lab)
I hope I am able to intervene at this point before the noble Baroness sits down—some of these new rules that have been introduced for Committee stage I find incredibly damaging to our ability to properly scrutinise this Bill; I raised that point at the committee.
The noble Baroness said that the FCDO fully supports this legislation. She may recall that, at the previous Committee day, I specifically raised this question because I wanted to inform the Committee of the precise nature of the FCDO’s advice following United Nations resolutions regarding the Occupied Territories, which are specifically mentioned in this Bill. Perhaps she can take this opportunity to tell us how that advice could potentially impact the sort of investment and procurement decisions that organisations might make. There is advice issued by the FCDO in relation to the Occupied Territories.
Baroness Neville-Rolfe (Con)
We are going to be discussing the Occupied Territories in a group two or three later in this Bill and I do not have an answer to the noble Lord on this point today, except to reiterate that this Bill has been collectively agreed. I was particularly talking about the arrangements for regulations which, in turn, had been collectively agreed. I explained the system that when you have a new statutory instrument, there is a write-round which involves all relevant Ministers. In this particular case, that would certainly include the Foreign Secretary.
Lord Warner (CB)
Before the noble Baroness sits down, can I ask her to take away the point I was ineptly trying to raise earlier? If a public body—we could take as examples housing, health and care—has an investment decision to make on a new building and/or new services, is it expected to find out more about the sources of the money going to be used to enable it to perform public functions and provide new public buildings? Are they expected to go that far?
Baroness Neville-Rolfe (Con)
I am grateful for that point, but I am not sure I entirely understand it, so perhaps I can offer to meet the noble Lord or to write to him and make sure that he gets an answer in good time.
Baroness Chapman of Darlington (Lab)
My Lords, I was not expecting this group to elicit quite the debate it did, but it was incredibly helpful and welcome in exposing what the noble Lord, Lord Warner, called “sloppy”. He makes a fair point. The Minister said that she did not like that phrase but, given that we have been unable to agree a definition of a “public function”, unable to elicit a proper definition of “procurement” and have not agreed what a “public body” is by any means, I have to agree with him.
This is not us being mendacious or deliberately creating problems for the Government, although you could argue that is a fair thing for the Opposition to want to do; that is not what we are doing here. Like the noble Lords, Lord Willetts and Lord Deben, we are trying to get to the real nub of how this Bill enables the Government to fulfil the commitments that we all accept they made in their manifesto. We understand that the Government want to stand by those commitments, but we are so concerned that the legislation before us could end up straying into so many more areas. I honestly do not think that when this went into the manifesto, anybody had sporting bodies or schools in mind, yet here we are with the Minister unable to answer some quite straightforward examples, including a very good one from my noble friend Lord Boateng. I regret that.
I agree with my noble friend Lord Collins that, when the Government Whip pops up to try and rescue the Minister from having to take too many more interventions, that is fair enough, those are now the rules, but this place is supposed to be able to spend a bit more time in Committee—
Baroness Neville-Rolfe (Con)
I think that is a little unfair. The noble Baroness knows that I am always ready to take interventions and have continued to do so. I am doing my best to do the job that this Chamber does so well. We have used the Human Rights Act definitions and this Chamber has decided that that causes problems. I am sure those are soluble.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 7th May 2024
(7 months, 2 weeks ago)
Lords ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: HL Bill 38-III Third marshalled list for Committee - (2 May 2024)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Lord Collins of Highbury (Lab)
My Lords, I say to the noble Baroness, Lady Noakes, that I wish the Bill was specific and addressed the manifesto commitment of the Conservative Party. The Labour Party has made it absolutely clear that we are opposed to boycotts, disinvestment and singling out Israel. The problem with the Bill is that it is wide. It covers all kinds of issues that will place public bodies in a very difficult position. In the debate on this group of amendments, we have senior legal people all saying basically the same thing: this will end up in court. When that fear of ending up in court occurs—when people read a law and say, “This is so complicated that we don’t know what it means; it will end up with us in court”—what happens then? It is the chilling effect. There will be decisions made not in the interest of the public body but on the basis of it not being sure that it is capable of making this decision. That is the important thing.
I support my noble friend’s amendment on extending the exceptions. The Schedule lays out other obligations on public bodies, not least very positive legislation that this Government have implemented on modern slavery, on other international law issues, on labour-related misconduct and so on. They are naturally there because these public bodies have already been told that these obligations are on them. There will be a lot of confusion. I agree with my noble friend’s point about taking into account potential breaches of international law by the UK but not those by other countries in the supply chain. Most of our experience of labour issues is that those supply chains can be incredibly convoluted. You do not know the origin of certain products. We have had debates in this Chamber about the use of cotton grown in Xinjiang by slave labour and being sold in British shops. Companies have decided to find out where that goes.
My noble friend also raised the Rana Plaza disaster of 2013. I remember it well, and I am sure that the Minister does, too, because many of our retail companies were selling products made in factories that were incredibly unsafe and used child labour. That disaster will stay in my mind. The government response at the time was, “There are potential breaches of international law. We will give the ILO extra money to go and investigate Bangladesh so that it commits to its proper responsibilities”. We did that.
The Government in this legislation are saying, “There are all sorts of factors that we can’t take into account—and even if we can, there are exceptions, the Secretary of State has to be involved, and we know it’s going to end up in court.” That is the problem with this legislation. It is not straightforward dealing with BDS. I wish it were. We will come on to that in the other group.
I have been trying to work out at what point I should read out the guidance on the Occupied Territories in Palestine that the Government have issued to companies. I say to the noble Baroness, Lady Noakes, please read it. The noble Baroness is nodding; she has read it. Great. I shall read it into the record, although it may take longer than the 10 minutes I am allowed.
“The UK has a clear position on Israeli settlements: The West Bank, including East Jerusalem, Gaza and the Golan Heights have been occupied by Israel since 1967. Settlements are illegal under international law, constitute an obstacle to peace and threaten a two-state solution to the Israeli-Palestinian conflict. We will not recognise any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties … There are therefore clear risks related to economic and financial activities in the settlements, and we do not encourage or offer support to such activity. Financial transactions, investments, purchases, procurements as well as other economic activities (including in services like tourism) in Israeli settlements or benefiting Israeli settlements, entail legal and economic risks stemming from the fact that the Israeli settlements, according to international law, are built on occupied land and are not recognised as a legitimate part of Israel’s territory. This may result in disputed titles to the land, water, mineral or other natural resources which might be the subject of purchase or investment … UK citizens and businesses should be aware of the potential reputational implications of getting involved in economic and financial activities in settlements, as well as possible abuses of the rights of individuals. Those contemplating any economic or financial involvement in settlements should seek appropriate legal advice”.
That is the Government’s advice, recently issued. As the noble Lord, Lord Deben, said, we are saying that there is one policy for the private sector and another for the public sector. That is absolutely crazy. There are so many contradictions in this legislation that it beggars belief. I hope that the Minister will think hard about the complex nature of the Bill, and perhaps give it due consideration. I shall not repeat my comments on the next group, but we have often said, “Let’s sit down together and come to a solution that meets the requirements that were set out in the manifesto”. This legislation does not; that is why it is so wrong.
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I will address the various amendments tabled in relation to international law. If the Committee is content, I will start by addressing Amendment 31, tabled by the noble Lord, Lord Hendy. It is a wide-ranging amendment, as some have said, which would allow public authorities to choose not to procure a good, service or works if their manufacture, provision or supply may have involved a breach of international law. Where a judgment has been made that a party has breached international law, it is for the Government and not a public authority to determine the appropriate response. This amendment would give public authorities too much discretion to engage in boycotts and divestment campaigns and would undermine the legislation.
Lord Deben (Con)
My noble friend is saying that, if a regime controls by force and in the most terrible way the whole economics of a nation, I can advise a private company not to deal with it and remove itself from it, but a public body could not say, “I will not trade with or buy from Myanmar”, unless the Government decide that they will not deal with Myanmar in that sense. I find that morally extremely difficult to take. We are asking private people to do things—I am sure the Government would support that—but we are going to exclude those who are democratically elected or who are looking after, for example, a university. I find that very difficult to take.
Baroness Neville-Rolfe (Con)
We are of course dealing with investment and procurement and the public bodies themselves.
Perhaps I should respond to the noble Lord, Lord Collins, who mentioned the Occupied Territories, which we will be coming back to on later amendments. Although the Government recognise the risks associated with—
Baroness Blackstone (Lab)
My Lords, I am sorry to interrupt the Minister, but I am perplexed by her view that foreign policy is simply a matter for central Governments. Foreign policy affects the population of the UK; it affects thousands of institutions in one way or another. We live, after all, in a global world. We do not live in a completely isolated country with no contact with the rest of the world. Foreign policy is not just something that can be determined and administered entirely by central government without the engagement, involvement and acceptance of those policies by a very large number of public and private institutions and individual members of this country.
Baroness Neville-Rolfe (Con)
I note what the noble Baroness says, but the Bill does not change UK foreign policy. That is for FCDO and the UK Government to decide. This applies only to public authorities and to investment and procurement, which I have continued to emphasise, because I think some of the discussion is needlessly wide-ranging—and, if I may, I will now make progress.
The Government, as I was saying, in relation to the Palestinian Occupied Territories, recognise the risk associated with economic and financial activities in the Israeli settlements, but we do not support boycotts of the Occupied Palestinian Territories. They are inherently divisive and may lead to inadvertent negative effects on Palestinians, as well as undermining the aim of the Bill, which is to ensure that we speak with one voice internationally. None of this changes existing government guidance.
Lord Collins of Highbury (Lab)
This is a fundamental point. I have made clear the Labour Party’s position on boycotts. We are talking about investment in factories in illegal settlements in the Occupied Territories. What is the noble Baroness saying to a public body that realises that an investment it had has suddenly transferred from Jordan to a factory in the Occupied Territories? Is she saying that that public body cannot say that the investment is in breach? It causes reputational risk and could fundamentally affect the value of the investment, because it is illegal. What is the noble Baroness saying: that we are going to put it in this Bill, come what may, because that is the foreign policy? It makes no sense to me at all. The Government are talking with two voices. The FCDO is saying one thing and this Minister is saying something completely different.
Baroness Neville-Rolfe (Con)
I do not think there is a difference between us and the FCDO. If I may, I will move on to the other amendments, because I am trying, as I always do, to answer the questions noble Lords have asked. There are a number of different amendments in this group, and I think we should look at them in the round. I will turn to Amendments 18, 28 and 29.
I will start with Amendment 28, which is a probing amendment tabled by my noble friend Lady Noakes, which would remove paragraph 6 of the schedule. She said that was a direct approach. I thank her, more generally, for her support for this legislation and for providing this opportunity to explain why this provision was included in the Bill. Paragraph 6 of the schedule makes an exception to the ban for considerations that a decision-maker in a public authority reasonably considers to be relevant to compliance with the UK’s obligations under international law.
Amendments 29 and 18, as the noble Lord, Lord Verdirame, has explained, would remove the existing exception and replace it with a narrower exception that would only allow public authorities to consider international law in a way that is influenced by moral or political disapproval of foreign state conduct, in line with regulations made by the Secretary of State. I would like to thank him, and my noble friend Lady Noakes, and the noble and learned Lord, Lord Etherton, for raising this matter. I acknowledge the noble Lord’s and my noble friend’s valuable expertise in this area— of course, they have the support of the noble Lord, Lord Pannick, who is not in his place, my noble friends Lady Altmann and Lord Wolfson.
There are very limited examples of when this clause might be relevant to public authorities, such as when abiding by sanctions under international law. It is therefore intended as a safeguard. I appreciate the noble Lord’s concern that public authorities could make their own subjective interpretations of foreign policy that are not aligned with the foreign policy of the UK Government. This exception can only be exercised by public authorities in a way that is “reasonable”. It would be up to the enforcement authority, or the courts, to determine whether the exception was exercised reasonably.
However, I appreciate noble Lords’ various concerns on this matter, including the impact on the courts, and the Government will consider these. We will no doubt return to the international law issue on Report. I thank noble Lords for their insightful contributions—
Lord Purvis of Tweed (LD)
Can I press the Minister on that? My understanding is that, under the Bill, in the absence of a Minister or the Government coming to a determination that international law has been breached, a decision-maker in a public authority can make the decision that there is the potential of a breach. Therefore, a decision-making body at the moment, for example—because Ministers are warning the Israeli Government that their actions in the West Bank and Occupied Territories are potentially in breach of international law—would be permitted under Schedule 6 to make a decision not to invest.
Baroness Neville-Rolfe (Con)
I am not sure that I entirely understand the noble Lord’s question, but I will reflect on it. We will come relatively shortly to a group that will look at these issues more broadly. If I am able to do so, I will come back to him at that point.
As I have already said, various concerns have been raised, which we will consider. I thank all noble Lords for their contributions. I say to the noble Lord, Lord Deben, that we value this House’s expertise, as I said at Question Time only last week. The Government will continue to think carefully about the important points that have been made. I hope the noble Lord will feel able to withdraw his amendment.
Lord Verdirame (Non-Afl)
My Lords, I thank all noble Lords who have taken part in this debate. The key driver behind our amendments was a concern about clarity, as the noble Lord, Lord Deben, pointed out. International law is not just a law but an entire legal system, so to say that you cannot breach international law is like saying that you cannot breach Chinese law. The legislative instruction has to be more specific than that. That is the essence of our concern.
I do not think the power we are proposing in my amendments, supported by the noble and learned Lord, Lord Etherton, would be excessive, as suggested by the noble Lord, Lord Oates. We have other examples of that in the legislation. As for the Minister’s comment on sanctions, we already have powers in legislation to deal with sanctions, so there would not need to be an international law exception on such a broad and unlimited basis to cover that situation; we already deal with that in our existing legislation.
I thank those who supported our amendments and analysis, in particular the noble Baronesses, Lady Altmann and Lady Noakes, and the noble Lord, Lord Wolfson of Tredegar. I look forward to the proposals that the Minister said she would consider bringing forward on Report. With that, I beg leave to withdraw.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 14th May 2024
(7 months, 1 week ago)
Lords ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: HL Bill 38-IV Fourth marshalled list for Committee - (10 May 2024)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)
My Lords, I thank noble Lords for their thoughtful contributions today and for their engagement. I particularly thank the noble Baronesses, Lady Drake, Lady Janke and Lady Blackstone, and the noble Lords, Lord Shipley, Lord Willetts and Lord Hannay, who met me and officials to discuss the amendments a couple of weeks ago. During that meeting, noble Lords expressed their concerns regarding the financial and practical matters exception and the application of the Bill to the administering authorities of local government pension schemes. I sympathise with their ask for clarity in this area and I have taken some time to reflect on their comments. I will set out why, on balance, I think the Government’s drafting is sound on these points.
Before I address the amendments, I will set out why it is so important that the administering authorities of LGPSs are captured by the Bill. It is not a manufactured problem, as suggested by the noble Lord, Lord Wallace. Administering authorities come under frequent pressure from external pressure groups such as the Palestine Solidarity Campaign and the BDS movement to engage in BDS campaigns. We saw a notable example in 2021, when a UN special rapporteur wrote to the administering authorities of LGPSs demanding divestment from a number of Israeli companies. My noble friend Lady Noakes referred to this. The demands cited the LGPSs’ ability to play a transformational role.
We have also seen the BDS campaigners take credit for some decisions by administering authorities of LGPSs to divest from Israeli companies. For example, campaigners took credit for a decision by East Sussex Pension Fund to divest from an Israeli company.
Amendment 27, tabled by the noble Baroness, Lady Drake, would ensure that the ban does not hinder the ability of public authorities to consider financial risk and impact in their investments in a way that is influenced by moral or political disapproval of foreign state conduct. The Government agree with the policy intention of the noble Baroness’s amendment, and I acknowledge her expertise in this area.
However, having looked into the matter, we remain of the view that the Bill as drafted does not prevent public authorities being able to assess the financial and political risk of investments. The exception for considerations reasonably relevant to financial value and practical utility ensures that public authorities, including the administering authorities of LGPSs, will be able to make commercially viable decisions. This includes decisions to exclude investments if an assessment of the political and economic risks of an investment’s location could reasonably have an impact on the financial return of the investment.
I am grateful for the contributions of my noble friends Lady Altmann and Lady Noakes, and I confirm to the noble Baroness, Lady Drake, that
“financial value or practical utility”
captures considerations relevant to an investment’s long-term value and financial risk, not just its current value. I hope that my clarifying this on the Floor of the House provides the noble Baroness with reassurance.
Lord Warner (CB)
I want to clarify something that the Minister just said. Does this mean that, if my local authority pension scheme, from which I benefit, decided that an investment in Israel was risky and put the members’ money at risk, it could disinvest because it was risky, but not for any other moral grounds? Is that still permitted under this legislation?
Baroness Neville-Rolfe (Con)
I will cover that later in my response. There is a point about territoriality, which we will come on to address.
Additionally, the drafting of the guidance referenced in the speech from the noble Baroness, Lady Drake, does not change our view of the scope of this exception. I agree with my noble friend Lady Noakes’ assessment that the amendment could cause some confusion. If we were to accept it, it might raise questions about what considerations relevant to “financial value” and “practical utility” actually capture if they do not capture risk assessment.
I know that the noble Baroness will be disappointed that the Government are unable to accept her amendment, but we did not brush it aside and looked carefully at what she said at our helpful meeting. However, I hope that she is reassured by the Government’s position that the Bill’s current drafting adequately addresses her concerns, with that clarification.
Before I turn to other amendments, I will address the noble Baroness’s point about the impact of judicial review on LGPSs. I will provide a fuller response to the detail in the later group that was referred to in the debate. The Government believe that it is right that companies that have been the target of boycotts and divestment campaigns can challenge these decisions through the courts. There are safeguards in place to prevent undue or nuisance claims. None the less, the number of examples of administering authorities participating in BDS campaigns is relatively small; therefore, we do not anticipate a large burden on the courts.
Amendment 45, tabled by the noble Baroness, Lady Blackstone, would remove management decisions from the Bill’s definition of “fund investment decision”, with a view to ensuring that the ban does not apply to the stewardship activities of administering authorities of LGPSs. I confirm, as we agreed at our meeting, that stewardship activity would be an example of a management decision.
It is right that the ban applies to stewardship. Otherwise, administering authorities could, as part of the stewardship of their investments, ask companies in which they have invested to engage in boycotts and divestment campaigns. If this was allowed, campaigners would be emboldened to lobby local government pension funds to ask companies in which they invest to boycott and divest. These campaigns distract local administering authorities from their core duties and could contribute to community tensions. We believe that allowing this kind of activity would undermine the ban.
The Bill contains an exception to the ban for considerations that a decision-maker considers relevant to the financial value or practical utility of an investment. Therefore, it would not prevent public authorities asking companies in which they invest to consider matters that they consider may affect the long-term value of their investments.
I understand that the noble Baronesses, Lady Blackstone and Lady Janke, are concerned that this position conflicts with the Government’s wider policy on stewardship. We do not consider this to be the case. This is an extremely narrow Bill that will place restrictions only on the ability of the LGPSs’ administering authorities to make territorial considerations in their investment decisions that are influenced by moral or political disapproval of foreign state conduct. LGPSs’ administering authorities will still be able, through effective stewardship, to exert a positive influence on investee companies to promote strong governance, manage risk, increase accountability and drive improvements in the management of environmental, social and corporate governance issues.
Administering authorities are ultimately responsible for setting the investment strategy of their funds, having taken proper advice. This includes setting their asset allocations to achieve a diversified portfolio of investments which overall is suitable to meet liabilities, as well as setting their approach to responsible investment, in line with statutory guidance. The Bill will support administering authorities to remain focused on their core duties, protecting the long-term financial interests of beneficiaries.
Amendment 46A, tabled by the noble Lord, Lord Collins, would provide that a pension fund in scope of the ban can make territorial considerations influenced by moral or political disapproval of foreign state conduct when making decisions in line with certain investment guidelines published by the UN. The Bill will apply only to campaigns that target countries and territories specifically, and therefore will not prevent the adoption of ESG requirements that are not specific to a country, such as modern slavery requirements. For example, to address the point made by the noble Baroness, Lady Janke, the Bill will in no way prevent the LGPS administering authorities divesting from fossil fuels, as long as this policy is applied to all countries and territories consistently. Similarly, the Bill will not prevent the administering authorities divesting from companies implicated in human rights abuses, provided the policy is applied to all countries, rather than identifying particular countries or territories.
The Bill will not prevent LGPS administering authorities making a decision in line with guidelines published by the UN, as long as this does not entail the public authority having regard to a territorial consideration in a way that indicates moral or political disapproval of foreign state conduct. For example, the Bill will not prevent public authorities having a policy to comply with all UN sanctions or UN Security Council resolutions, as that is not a territorial consideration. However, the policy must be genuinely non-country specific—
Lord Collins of Highbury (Lab)
Can the Minister specifically address the contribution from the noble Lord, Lord Hannay, in relation to territorial extent? I have in mind, because it was raised in other groups and discussions, companies that attempted to have factories or investments in the Occupied Territories and might then have withdrawn from those investments. I want her to focus on that. If a company decides that it will open a plant in the Occupied Territories and will not have the benefit of legal protection under international law, and it would be contrary to the advice the Government have given, and if a local government pension scheme then said, “Well, that company is putting our investment at risk and therefore we will disinvest”, would that be legal under the Bill?
Baroness Neville-Rolfe (Con)
I can confirm that LGPSs will be allowed to divest from, say, the settlements or Israel if the sole reason is that the investment is financially risky. It is if it is caught by the flavour of the Bill that we run into a problem—
Lord Collins of Highbury (Lab)
It is important for clarification because the Government’s own advice says “It’s risky because it’s not legal and therefore won’t have that international law protection”. So it is very good if the Minister is being absolutely clear in relation to the Occupied Territories.
Baroness Neville-Rolfe (Con)
Perhaps I could just finish on the other points. It makes perfect sense to ensure that, when having regard to ESG requirements, these are applied consistently by LGPS administering authorities and do not single out particular countries or territories—because it is the latter that will breach the ban, as I think we all now understand.
The Bill allows for a number of exceptions, including considerations relating to labour market misconduct, modern slavery and human trafficking. Therefore, the Bill will in no way prevent the administering authorities adhering to modern slavery guidance.
Finally, I turn to the proposition from the noble Lord, Lord Davies of Brixton, that Clause 12 should not stand part of the Bill—
Lord Hannay of Chiswick (CB)
I am slightly puzzled by the Minister’s statement that the Government wish to avoid any territorial connection, since the Government themselves have placed large chunks of territorial description in the Bill. Could the Minister enlighten us on that? After all, it is the Government who have put down a Bill that talks about Israel and elides Israel with the Occupied Territories, the Golan Heights, east Jerusalem and the West Bank. Although they have confirmed their view that the settlements in all those areas are illegal, and therefore that investment in those settlements would be illegal too, it is the Government who are specifying this matter territorially. By all means, take the whole lot out—that would be fine.
Baroness Neville-Rolfe (Con)
As I was trying to explain, the important point is that it depends on the motivation for the decision. The Bill would prohibit only investment and procurement decisions that would appear to a reasonable observer to be influenced by moral or political disapproval of foreign state conduct, and have a territorial element. It would not prevent public authorities making any other kind of territorial or practical business considerations. I have been trying to clarify this.
As I am conscious of time, perhaps we could turn finally to—
Lord Warner (CB)
I am sorry, we are getting very confused, certainly at this end of the House, as to what is the issue of risk. If a country—let us forget the names of the countries in the Bill—has a reputation for unrest and uncertainty, the cautious trustees of a local government pension scheme are highly unlikely to want to put their members’ money at risk. Where we have a situation in, say, a number of Middle Eastern countries where that is the position, they would, quite reasonably, in pursuit of their fiduciary responsibilities, not invest in those countries. So they would presumably be documenting that the reason they were not investing in those countries was the risk at which it would put their members’ money. Is that the position? As long as they show that that the reason they have made investment decisions to disinvest from, let us say, Israel or the Occupied Territories, is because it puts at risk their members’ money, is that okay under this legislation?
Baroness Neville-Rolfe (Con)
To confirm, I think that is what I said a couple of minutes ago. The sole reason must be that it is financially risky—that it is business risk guidance, not boycotts. My own feeling is that that is a helpful clarification. I am sure that noble Lords will look in Hansard at what I have already said.
If I might now finish, I would very much like to—
Lord Thomas of Cwmgiedd (CB)
Before the Minister sits down, which she has indicated she is very anxious to do, I would like to go back to the, in my view, very unfortunate discussion that we have had about the definition suggested in Amendment 27.
As I understand it, it is accepted that financial risk is included within the wording. What is unclear—no doubt in years to come people will pore over the Minister’s speech, so I want another little bit for them to pore over—is: what about financial impact? I think the Minister said that that gave rise to uncertainty, but it would be helpful to know whether, in looking at the way in which decisions can be made, the financial impact can be taken into account. It would be so much better, of course, if we put the words in the Bill and left it not to accountants but to lawyers to deal with in the future.
Baroness Neville-Rolfe (Con)
I can reassure the noble and learned Lord that lawyers have been involved in drafting the Bill, as he can probably imagine. I tried to set out quite clearly at the beginning why we felt that the wording we got was right; that included financial impact. I have subsequently clarified the point about motivation and financial risk.
In the excitement, I have lost my place. I was asked about the effect of removing Clause 12, and was hoping to be able to answer the noble Lord. Removing the clause would mean that the ban would not apply to the fund investment decisions of administering authorities of LGPS. The administering authorities are local authorities, which are clearly a core part of the state and are therefore public authorities for the purposes of Section 6 of the Human Rights Act. That is why they are the only pension funds captured by the Bill. We have seen clear examples of local authorities attempting to engage in BDS activity in the past. It would not be appropriate to apply the ban to funds administered by private entities, such as the Universities Superannuation Scheme.
As I have argued before, council tax payers should be able to expect their local councils to exert time and effort on solving local issues, rather than spending time thinking about boycotts of foreign states when, as the noble Lord has said, the beneficiaries expect the responsible authorities to concentrate on returns and the ongoing viability of their investments in the interests of the beneficiaries. If the Bill were to stand without Clause 12, councils coming under pressure to develop their own policies on divisive international issues would be pushed towards an LGPS loophole to implement BDS campaigns.
The priority for these funds should be to provide stability and good long-term returns for the hard-working local government officials who are their members. We now know that this includes the noble Lord, Lord Warner, the noble Baroness, Lady Janke, and others. The Bill helps the administering authorities not to be distracted from this important purpose, and to focus on returns in a responsible, long-term way. For these reasons, I ask noble Lords not to press their amendments and not to oppose the question that Clause 12 stand part of the Bill.
Baroness Drake (Lab)
My Lords, I thank everyone for participating in this debate, particularly those who supported my amendment.
I should make it clear that I have not actually challenged the manifesto commitment; lots of others do, but I have not. I have challenged that the manner of its implementation introduces legal uncertainty and perverse consequences: inviting a wider range of legal challenges and judicial review. It would seem good business to address that.
The Minister says that she hopes I am assured by the Government’s assurances, but it is not me who needs the Government’s assurances; I am not a decision-maker in the Local Government Pension Scheme or in public procurement. Most people know that I am a trustee, but I am not in a local government pension scheme. It is those with the concerns—I know they have them—and the decision-making responsibility who are not reassured by these statements, and were not reassured by the statement of the Secretary of State.
We can stand on these Benches and argue between ourselves as to what “financial” does or does not embrace —I can bore you with 30 years of experience and what legal guidance I have had as a trustee—but that does not matter. We have an uncertainty; we are resting on a government statement that it is not uncertain, but we are already uncertain as to whether it includes impact. We could simply address the issue and put “financial risk” as one of the explicit considerations that need not necessarily fall foul of the Bill. I have not heard a single good reason today why such a simple tweak could not address this issue. I have had wider discussions on a whole range of things. It is not only me but people I have spoken to—who will be engaged in decision-making—who believe it opens up the range for judicial review and legal challenge, and feel it has legal uncertainty. It seems to be good sense, when you are looking at a fund of £360 billion, that when those concerns are expressed, you address them.
The Bill creates a whole new machinery that allows the checking of the integrity of local government pension scheme investment decisions against a new set of criteria. That has opened up new grounds for judicial review and given opportunities or succour to possibly bad-faith actors. Legal proceedings could demand to know all the details of exchanges and engagement in discharging stewardship duties, to see whether an investment decision fell within an accepted category. In a £360 billion local government pension scheme, I would want to nail that. If I was a government department and was going to introduce that machinery—which suddenly introduces a whole new set of criteria for investment decisions—I would want to nail down the range of areas under which local government pension scheme decision-makers could be attacked.
There is uncertainty. I quote from the Financial Markets Law Committee report, which the Government have endorsed and think is a good idea. It says that
“investment decisions have all become more challenging in the context of sustainability and the subject of climate change … Today it is sometimes easier to state the duties than it is to apply them”.
Well, the Bill makes it even more difficult to apply them. It brings a whole new range of criteria and invites legal uncertainty at the same time, because we cannot agree on the definition of “financial value”, but if we added a tweak, such as risk and impact, we could nail some of this. As has been said, why can we not just lock it down and get rid of some of this uncertainty?
We have some guidance on impact. I cannot bring every reference document that I would bring to the table if I was sitting in a negotiating room, but we have very new guidance from the DWP, on its website, on social factors and the impact. These are not the only factors, but it gives a meaning to “impact”:
“the impact of social factors on an investment”
or the “impacts of an investment”. It is a pretty wide range. In fact, on ESG, the statutory guidance to local government says that it can consider any factor that is financially material to investment principles. So we can track from the Government’s own publication what impact means. The Minister referred to having government lawyers; they will have drafted some of those documents.
The explanatory statement to Amendment 46A says that its intention is for there to be the ability to carry on applying ESG factors in the way they have traditionally been applied. We know what that means in local government, because it is set out very clearly in statutory guidance.
On the issue of territorial matters, I tried to give an extreme example—passive funds. Anybody who is a trustee knows what passive funds are. On the logic of this, unless we put “risk” in very clearly, if you have a passive fund that does climate transaction benchmarks, you might be liable to someone saying, “Well, there was a company or a country in there that was screened out; did you individually interrogate the way in which that passive fund that you invested in was screened out?”. I know that is extreme, but this is the situation we get into unless issues such as impact and risk—clearly legitimate factors to take into account, as set out in statutory guidance from the relevant department to LGPS—can unequivocally be taken into account.
The noble Baroness, Lady Altmann, spent a lot of time referring to the Local Government Pension Scheme as a statutory pension scheme; it is not a trust-based scheme. Absolutely—I mentioned that because I wanted to set out that I understood that distinction because it is not relevant to the point I am making. It is not relevant to the point that it is ambiguous and uncertain under the terms of this legislation.
Economic Activity of Public Bodies (Overseas Matters) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 14th May 2024
(7 months, 1 week ago)
Lords ChamberEconomic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Read Hansard Text Watch Debate Amendment Paper: HL Bill 38-IV Fourth marshalled list for Committee - (10 May 2024)
This text is a record of ministerial contributions to a debate held as part of the Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Baroness Janke (LD)
My Lords, to answer some of the points made by the noble Baroness, Lady Noakes, the idea that individuals are not targeted is certainly not sufficiently reassuring to make local decision-makers feel protected. Most of what is in the Bill seems to be very much targeted at local authorities and their members.
It is perhaps worth while to point out here, in this unelected Chamber, that councils are directly elected and are accountable to their electorate. They are also obliged to report back to their constituents about such things as decisions that they have made. I was a former leader of a council, and I would have wondered, on seeing this Bill, having been asked why I had made a certain decision, whether replying in a certain way would mean that I was prosecuted, or perhaps that I was not able to reply because I am forbidden to speak about this. There is sufficient lack of clarity in the Bill to make people wonder about that. I do not think that it has been demonstrated otherwise. As the noble Lord, Lord Warner, said, the Constitution Committee sees this as a major threat to free speech. We need some more guidance on this.
I take exception to the idea that, somehow, statements from student encampments are equated with statements issued by locally elected authorities and their officials. They are not the same at all. Local authorities have a constitutional role, and they should be respected as such. The contempt that I have heard from some people in this Committee is unwarranted, given the lack of evidence of councils making such decisions as are prohibited in the Bill.
The idea that prohibiting such statements will have a good effect on social cohesion is much more likely to have the opposite effect. If people are told that they are not allowed to make statements, they are much more likely to try to find other ways of getting their messages across. The idea of oppression leading to better social cohesion seems to me to be a false premise.
I agree with the noble Baroness, Lady Chapman, that there is a complete failure by many of us in this Chamber to explain why Clause 4 is necessary. We have not really heard any good reason, other than the noble Baroness, Lady Noakes, telling us it is for social cohesion.
On the idea that freedom of speech is offended by Clause 4, as the right reverend Prelate said, freedom of speech is a basic right and a cornerstone of democracy. Although we are an unelected House, we fight for democracy—I would hope—and stand by democratic principles, as has the Constitution Committee, as told to us by the noble Lords, Lord Beith and Lord Warner.
The practical issues with the Bill, as to how its provisions are actually enforced, is again something that needs clarity. As the noble Lord, Lord Warner, said at the beginning, we are discovering with the Bill that, the further we go with it, it really lacks clarity. Trying to establish what it is meant to do and how it is meant to do it seems to have defeated us so far.
We need much better clarification about the Human Rights Act. If the Constitution Committee of this House tells us that the Bill contravenes Article 10 of the Human Rights Act, we need to know how it is that Ministers are telling us that it is somehow compliant, as this is clearly not the case.
As the noble Lord, Lord Beith, said, to prevent people talking about issues important enough for them to be calling for a boycott is an outrage. The Explanatory Notes trying to maintain that somehow individual councillors will not be targeted or held responsible is totally inadequate if that is not going to be on the face of the Bill.
The clause deserves to be removed. I very much regret that it disrespects the role and responsibility of directly elected councillors and their officials. It has extreme overreach in trying to gag them and prevent them explaining their decisions, for which they are publicly accountable. I believe that contraventions of the ECHR are matters to be taken very seriously, so I want to hear from the Minister further explanation and further response to the recommendations of the Constitution Committee.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, Amendment 33 to remove Clause 4(1)(b), moved by the noble Baroness, Lady Chapman, and the amendment in the name of the noble Lord, Lord Collins, to remove Clause 4, undermine the aims of the Bill.
Before I address the amendments, I reiterate that the Government are committed to protecting freedom of speech, which is why the Bill’s provisions apply only to public authorities and not to individuals or companies in their private capacities. I made that clear in my response to the Constitution Committee report in March and set out why the clause is necessary to fulfil the 2019 manifesto commitment.
I also clarify to the noble Baroness that we are not creating any new criminal offences in the Bill for statements about boycotts or handbags or any other kinds of statements. Moreover, statements about one wanting to steal someone’s handbag would clearly not have an impact on community cohesion in the way that statements of intent to boycott may. Statements of intent to boycott can be threatening and intimidating, particularly for those within the Jewish community.
Baroness Chapman of Darlington (Lab)
My Lords, we are not talking about a statement of intent to boycott; we are talking about a statement that you would have done something but you do not intend to do it. That is the point that we are trying to make.
Baroness Neville-Rolfe (Con)
I think that it is necessary to make these points within the framework of the Bill.
I will move on and explain Clause 4, which, in its entirety, is an instrumental part of the Bill. It prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill. That includes statements indicating that the public body would have acted differently if the legislation had not been in place.
I will deal directly with some points that I feel are misconceptions. The clause will not affect the statements of individuals, unless they are speaking as or on behalf of a public authority. The noble Baroness, Lady Chapman, is not speaking for a public authority in her colourful example; I assure her that she would not be in breach of the ban if she were making a statement of intent to boycott. Even when an individual is speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Thos includes councillors, to answer the question raised by the noble Lord, Lord Davies of Brixton. For that reason, I reiterate—
Lord Warner (CB)
I am very sorry, but I must ask the Minister to address the question about Clause 1(7)(b). If she reads that clause, she will see that it could cover any individual who seeks to influence a decision-maker. That could include, in my interpretation, a journalist writing a campaign statement in a newspaper, asking whichever council it is to take action.
Baroness Neville-Rolfe (Con)
I will come on to decision-makers.
I reiterate that it is important that the Bill does not breach Article 10 of the ECHR on the right to freedom of speech, and I have already reiterated the Government’s support for free speech. The reason the Bill is compatible with the ECHR is that public authorities do not enjoy human rights, as the purpose of the convention is to protect individuals from undue interference by the state, of which public authorities form a part.
I gave a full reply to the committee in my letter of 15 March, and we have already added extra provisions to the Explanatory Notes, some quoted by the noble Lord, Lord Beith, to make it clear how the sorts of concerns expressed this evening may be mistaken. He provided an example where a local authority debated a motion to boycott that was ultimately not passed, and asked whether the public authority would be in breach of the ban if it explained that the reason it did not support the motion is that it would be illegal under the Bill. In this scenario, it is the individual councillors who said that this is the reason they did not support the motion in the vote. The public authority has not adopted the motion. Its statement merely summarises the individual councillors’ reasoning. It is therefore not an expression of the public authority’s intention to boycott. Even in the case where the councillor was speaking on behalf of that public authority, such a statement would be in breach of the Bill only if it clearly indicated that the public authority intended to engage in a boycott in the exercise of its public functions or would engage in such a boycott if that were lawful.
Lord Beith (LD)
As I say, it is the leader of the council who is being questioned as to why the council did not, in the event, agree to a boycott, although there were speeches in the chamber and maybe some votes cast supporting a boycott. What is he able to say that does not fall foul of the legislation as currently drafted? If he says, “The reason we are not going ahead with this is that it is against the law, and this council does not do things that are against the law”, is that not in breach?
Baroness Neville-Rolfe (Con)
The principle is that the person seeking to influence would not be caught by the Bill. The provision is to deal with a situation in which a public authority boycotts because of pressure from someone else, rather than its own disapproval of a foreign state.
Lord Beith (LD)
I apologise, but I think the Minister is trying to answer at the same time the points that I and the noble Lord, Lord Warner, made. His point was about the category of people referred to in Clause 1(7), I think. I am talking about a situation, directly following the example that I gave and she has used, in which the leader of the council seeks to explain why the council is not doing what at least some people were recorded as having said that it should do during the debate, saying, “No, we’re not going to do that because this council does not do things that are against the law”.
Baroness Neville-Rolfe (Con)
I will take the noble Lord’s example away. I have given him a clear statement and he makes a reasonable point. I think there is an answer to it, but I will not just make it up; I want to give him a clear answer on that. Perhaps I can move on and deal with one or two other concerns.
The Lord Bishop of Manchester
I am sorry to delay things yet further. We have had a lot of discussion about theoretical examples of what might happen. I tried to give your Lordships’ Committee a particular example of a case against the then Mayor of London. It was a notorious case and it took months in the courts to decide whether he was acting as a public authority or in his private capacity. Therefore, how can the Minister seem to think it so simple to decide when somebody is acting in a private capacity and when they are acting as a public authority, given that the one case that really got the public attention spent months in the courts before it was eventually determined that on that occasion he had been acting in a private capacity? I am sure that everybody can remember the case.
Baroness Neville-Rolfe (Con)
I am afraid that I am not familiar with that case, but I take the right reverend Prelate’s point. The way I have described this shows that in fact this is limited in intent; free speech is possible in a personal capacity. I will come on to say a little more about that and about decision-makers, because I know that we need to clear up those points and I am conscious of time.
The noble Baroness, Lady Chapman, highlighted that Ministers in the Scottish Government would be captured by this provision. As I have explained, as Ministers in the Scottish Government are public authorities for the purpose of human rights, they do not have ECHR protections in their public functions. It is clearly right that this provision should apply to Scottish Ministers to ensure that communities in Scotland are protected from these divisive statements, and foreign policy is a reserved matter. Additionally, Clause 1 applies only in relation to procurement and investment decisions in the exercise of public functions. Therefore, Clause 4 would not apply to statements made by Scottish Ministers about how they tend to act in their private lives.
Baroness Chapman of Darlington (Lab)
Can we be absolutely crystal clear on this? The Government are arguing that a Minister in Scotland, the Mayor of Greater Manchester, Andy Burnham, or the First Ministers of Wales or Northern Ireland could not legally make a statement saying, on behalf of the public authorities they are elected to lead, that they do not intend to break the law because they do not break the law. Clause 4 would prevent them doing that.
Baroness Neville-Rolfe (Con)
I am not sure that is right. I will seek advice.
Baroness Neville-Rolfe (Con)
It may be important, and therefore it is all the more important that the noble Baroness’s question is answered fully and accurately. I have made it clear in answer to the noble Lord, Lord Beith, that as only public authorities are subject to Clause 1, Clause 4 is strictly limited to the actions of public authorities and therefore not individuals associated with public authorities.
Baroness Drake (Lab)
As chair of the Constitution Committee, I should say that the answer from the Government went on to say that declarations could be as harmful as the boycotts themselves, and that was deployed in defence. It is quite right to clarify the point made by the noble Lord, Lord Beith, on what constitutes a declaration that does or does not fall under the qualification in paragraph 6 of the Minister’s reply to the Constitution Committee. I do not seek to express a view; I am just saying that there is that undefined element.
Baroness Neville-Rolfe (Con)
I note the point that the noble Baroness has made. We did reply to the Constitution Committee, but I will reflect further on this point.
My noble friend Lady Noakes said that there had been some confusion due to the use of the term “person”, which I have already referred to. To respond to the point raised by the noble Lord, Lord Hendy, in the context of this clause, the legal term “person” refers only to a person subject to this Bill’s ban. In other words, it refers only to a public authority as defined in Section 6 of the Human Rights Act 1998. The legal term “person” does not have the same meaning as in normal English. This is standard legal drafting.
Additionally, for the purposes of this Bill, decision-makers are public authorities—as explained by my noble friend Lady Noakes and confirmed in Clause 2(1) of the Bill, which I have just referred to. Public authorities will delegate decision-making to individuals, but individuals’ decisions or statements are captured only when they are made on behalf of the public authority. This issue was also discussed in Committee in the other place. It was because we listened to the concerns raised on this point that we revised paragraphs 32 and 33 of the Explanatory Notes. Paragraph 32 states:
“As only public authorities are subject to clause 1, this clause is strictly limited to the actions of public authorities”
and therefore not individuals associated with public authorities. I think that goes three-quarters of the way to answering the question asked by the noble Baroness, Lady Chapman, but I will follow up.
I hope that makes it clear that this Bill is not an assault or restriction on the principle of free speech. Rather, it aims to ensure that the UK speaks with one voice internationally. Public authorities should not be pursuing their own foreign policy agenda or publishing statements on foreign policy. It distracts from their core duties. Clause 4 will support those bodies to remain focused on that purpose. It is a core part of the Bill and meets the manifesto commitment to ban public bodies from imposing their own direct or indirect boycott, divestment or sanctions campaigns against countries and territories.
Briefly to address Amendment 33, and the point raised by the noble Baroness, Lady Chapman, I remind the Committee of just how divisive of community cohesion within the United Kingdom declarations of intent to boycott can be. That includes statements made by public authorities that indicate that they would intend to participate in boycotts and divestments if it were legal to do so. The right reverend Prelate the Bishop of Manchester, who I am very glad has joined our discussions, will have noted what I said about elected officials, including councillors, expressing a view which is not related to the narrow purpose of this Bill. He asked for an example of our concern. We saw a good example in Leicester, which my noble friend Lady Noakes referred to. In its resolution in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott
“insofar as legal considerations allow”.
The motion was widely condemned by Jewish groups and was extremely divisive. This demonstrates the need to ban statements of intent to boycott or divest which express—
Lord Wallace of Saltaire (LD)
My Lords, we need to be very careful about how we talk about social cohesion at present. As it happens, I spent some time last weekend in Saltaire, which is part of the Bradford local authority, talking with one of Yorkshire’s Christian leaders and one of Yorkshire’s Muslim leaders about how we maintain social cohesion and interfaith co-operation under the current circumstances. It is not easy. These are two people whom I like and trust, and they are very good friends. We have to recognise the impact of the ongoing war, and in particular the response of our younger generation—white and Christian, and south Asian and Muslim—in all their diversity. It is very delicate at present, and simply asserting that stopping debate is a way to maintain social cohesion is not the answer.
Baroness Neville-Rolfe (Con)
As the noble Lord knows, the Bill aims to improve the situation with social cohesion. I note what he said, but we have seen examples of councils, such as Islington, passing motions in opposition to the Bill alongside foreign policy statements about Israel and other countries. While this might not be a breach of the ban, it demonstrates a strong interest in public authorities engaging in BDS campaigns. It could demonstrate that the Bill is already be having its intended effect of preventing public authorities making divisive statements.
The point is that, overall, Clause 4 supports the main aims of the Bill in ensuring that the UK speaks with one voice internationally and has one foreign policy agenda, and that public bodies do not introduce policies in that area that risk dividing communities at this difficult time. Accordingly, for this evening, I kindly ask the noble Baroness to withdraw her amendment.
Baroness Chapman of Darlington (Lab)
My Lords, this has been a helpful debate, if somewhat frustrating at times. I do not think that it is good enough to be reminded of social cohesion as a way of trying to entice us into supporting this measure. We all want to work hard to improve social cohesion where there are issues, and I know that the Minister would accept that that is our intention too.
There are fundamental problems with this clause. The Minister herself has said that she is unable to answer some quite basic questions that we have asked, and not for the first time this evening—we have asked these questions before. We have used different examples to try to tease out the answers, but the principal question is the same: who will be subject to this measure and what might the effect of that be? We still do not know the answer to that.
Baroness Neville-Rolfe (Con)
With respect to the noble Baroness, I have answered the large majority of the questions, but I said that I would take away the underlying question that she is enunciating.