Economic Activity of Public Bodies (Overseas Matters) Bill (Third sitting)
Thursday 7th September 2023
(1 year, 3 months ago)
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The Chair
I had not thought that there would be any need for a private session, but one Member has something that he wants to raise, so I think we should have a very brief private session. However, I should point out that the time that we take up by sitting in private will eat into the time for the witnesses.
The Committee deliberated in private.
Examination of witnesses
Jonathan Turner and Steven Barrett gave evidence.
The Chair
I apologise to the witnesses and members of the public who are attending today, for allowing them in before unfortunately having to ask them to withdraw while we sat in private. There was an issue that the Committee wanted briefly to discuss before we went into the formal, public part of the proceedings.
We will first hear evidence from Jonathan Turner, the chief executive of UK Lawyers for Israel, and Steven Barrett, a barrister at Radcliffe Chambers. I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick rigidly to the timings in the programme motion that the Committee has already agreed. For this panel we have until midday. Could the two witnesses briefly introduce themselves for the record?
Jonathan Turner: I am Jonathan Turner, chief executive of the organisation UK Lawyers for Israel and a barrister.
Steven Barrett: I am Steven Barrett. I am a barrister; I write sometimes in the press on law, and I occasionally appear in the media on law.
Greg Smith (Buckingham) (Con)
Before we begin, may I say for the sake of transparency—I do not think that this is a fully declarable interest—that Steven Barrett is known to me as a councillor in Buckinghamshire?
Richard Hermer: For the sake of transparency, I am a Conservative councillor in Buckinghamshire unitary authority. That will not form part of any of the evidence that I give to this Committee. I am a parish councillor in Chepping Wycombe, but that role is not party-affiliated.
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.
Wayne David
I hope so, too. I just want to ask your advice. Is it appropriate for a witness to this Committee to give evidence in the form of attacking another witness who does not have the opportunity to respond to those comments because he is not here? Surely a witness should be giving positive remarks about why something should be done, rather than criticising another witness.
The Chair
It is an interesting point, but it is not a point of order for the Chair. It is in the hands of the witnesses themselves to give their evidence in the way that they think most appropriate, and if that involves commenting on evidence that we have already heard, it is certainly acceptable for them to do so. You might not like it—
The Chair
But it is the system. I am going to move swiftly on now. A number of Members have indicated that they want to take part. I call Alex Norris.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
“would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval”.
Are you content with the phrase “reasonable observer”? Do you think it is tight enough? Could it be clearer?
Jonathan Turner: Yes. “Reasonable observer”, or “reasonable person”, is used throughout English and Welsh law and so on. It is the basis of the law of negligence. You interpret contracts with reference to how they are understood by the reasonable person. In legislation, similarly, and in lots of other documents it provides an objective test, instead of looking at the subjective intention of the maker of a statement. That has the benefit of greater certainty and greater clarity, which is why it is used.
I am very happy with it being the formulation that is used. I do not think that there is any problem with it at all; I think it is the best way of doing it. You would have terrible difficulties if you tried to do things in terms of the subjective intention of people adopting the decision.
Alex Norris
Q
Steven Barrett: It is not likely to be tested, because it is quite a settled test. It is a legal mechanism for taking subjectivity and turning it into objectivity, which is what law does—and which is why when I speak in public on law I have the unique and remarkable opportunity to annoy everyone. It is an acceptable test and I would not worry about it. The courts are familiar with it.
Dr Luke Evans (Bosworth) (Con)
Q
Jonathan Turner: Certainly parts of it are necessary. Otherwise, you have the Leicester City Council type of approach of saying, “We are supporting boycotts. We want goods from a particular territory to be boycotted as far as the law allows.”
That is deeply problematic. First, it has the same impact on community cohesion as any other BDS measure that targets a particular country and indirectly targets a particular ethnicity. Secondly, it creates a degree of confusion and difficulty for the staff who have to implement it: they have to work out what the law does allow in terms of boycotting, they have to find out what the facts are, they have to go to the lawyers, and there will be arguments about it. The whole thing becomes a mess and discourages them from accepting certain tenders. They are further discouraged by the fact that they might offend some of the councillors who were so vehement about passing the measure. It has a chilling effect on the public authority and the staff who are left dealing with it. That is what I see as the primary target of this provision.
As to whether it conflicts with human rights requirements: no, it does not. It only binds public authorities. It does not stop individual members saying, “I support BDS. I don’t like what such and such a state is doing.” It only stops a public authority saying that. Public authorities, as we know from the House of Lords decision in the Aston Cantlow case, do not have human rights under the European convention on human rights and the Human Rights Act. I think that is why they have chosen to do this by reference to section 6 of the Human Rights Act and its definition of “public authority”.
The Chair
Mr Barrett, is there anything you want to add?
Steven Barrett: No, because I cannot answer the necessary question because I think that would be a personal and political opinion. I can say that it is lawful and that I agree that it would not breach article 10.
Chris Stephens (Glasgow South West) (SNP)
Q
The Scottish Government oppose the BDS campaign, but also strongly discourage trade with companies active in the Occupied Palestinian Territories—an occupation that was recognised as illegal under international law and by the UK Government. How would you both respond to the concerns people have that the Bill effectively condones what many would regard as illegal occupation?
Jonathan Turner: First, I do not accept that it is an illegal occupation. Many international lawyers will say that the settlements are illegal. This is based on article 49 of the fourth Geneva convention, which prohibits a state—an occupying power—from transferring part of its population into an occupied territory. But conducting a business is not transferring population.
It is not just me who says this. The Supreme Court said it in Richardson v. Director of Public Prosecutions. It said that conducting a business in the west bank does not make the private operator of a factory a person who is promoting the transfer, by the state, of people into occupied territory. Running a business is not transferring people. It is sloppy thinking to say that the settlements are illegal. Companies operating in the vicinity of settlements do not normally operate in residential areas anyway; they normally operate in trading estates outside the residential areas. It is sloppy thinking to say that operating the factory, selling the goods or buying the goods is illegal under international law. It is not.
Steven Barrett: All I would say is that what you think about the situation in the middle east is a personal political opinion. As law, it is important that we get back to a healthy relationship with international law, which is understanding the role of incorporation and your role in controlling the flow of international law into this jurisdiction.
When the President of the Supreme Court corrected this for us lawyers, presumably to pass on to people like you, he speculated that it might be because we are so used to the EU. For 40 years, EU law was supreme here, which meant its being in charge. That meant that Ministers could be told, “No, Minister, that policy is illegal,” or “No, Minister, you cannot do this.” That has been going on for so long that many of us, simply by a form of muscle memory or attachment to that, are used to groping for some legal reason not to do things.
Now the EU has gone. International law has never been supreme; it is not supreme anywhere, and it has certainly never been supreme here. So you—all of you, collectively—need to come to terms with the power and responsibility that you have. If you think something about the situation in the middle east, or if you think something else about the situation in the middle east, you must sort it out. We will use democracy as a mechanism for settling the issues and seeing what the voters think, but that is the system that we have, and it is very important that we operate in it.
Really the only important part of Mr Hermer’s statement, which I saw this morning, is where he says, “You can do this.” Honestly, that is all you need to know. But groping around for just a resolution of the UN, which is a pretty weak source of international law anyway, and then looking at its wording and trying to say, “That means you can’t pass an Act of Parliament here”—no. That is constitutionally eccentric.
If somebody will allow me, I do have drafting concerns about the Bill. I do not know whether we will get to those, but I would like to raise them if I can.
The Chair
We are running rapidly out of time, but there is an opportunity for one very quick question.
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
Q
Steven Barrett: Yes. Mr Hermer actually flags them himself, and he is right. Paragraph 6 of the schedule is a constitutionally unique event. Given everything that I have said and explained to you here, we have never recognised all international law as binding. On my reading of that paragraph, it seems to me an extraordinary statement. If you do not amend that, I seriously suggest—well, I would just get rid of it, to be honest, because it is giving supremacy to international law. It is conceding the power that the voters gave you and giving it to this great, great mass that is thousands of years old. People will be able to reach into the great mass that is international law and pluck out everything. You could probably pluck out bits that contradict the other bits. They will be able to pluck or draw out something to justify whichever boycott they want. The people who are motivated to do boycotts are very strongly motivated to do them. They will use that paragraph.
I also think that they will use paragraph 4 on finance, which is just a bit woolly. I think it could be tightened up. I would be very happy to help with the drafting; I might write a note after this, if that would assist anybody. I am always happy to help Governments of any colour. Should the Government change, I will be happy to help—on law only.
I wanted to raise those two issues. Paragraph 6 in particular is really a constitutional aberration. It gives away your sovereignty to a great, amorphous entity that is not properly controlled. At least the EU had structures and was under control. If you think of international law as like a territory, it has carved out a space for itself and it is stable. The rest of international law is not stable.
The Chair
On behalf of the Committee, may I thank the witnesses? I am sure it has been quite a probing experience for you, but even if individuals might not agree with the advice that you have given, I think they respect the fact that it was given in good faith and comes from a base of knowledge that is very helpful.
Examination of Witnesses
Yasmine Ahmed, Dave Timms and Peter Frankental gave evidence.
The Chair
Q
Yasmine Ahmed: I am Yasmine Ahmed, the UK director for Human Rights Watch.
Dave Timms: I am Dave Timms. I am the head of political affairs at Friends of the Earth England, Wales and Northern Ireland.
Peter Frankental: I am Peter Frankental, economic affairs programme director at Amnesty International UK.
Chris Stephens
Q
Yasmine Ahmed: Yes, I certainly agree with that. Essentially, what we see is that the Bill is going to restrict the ability of public bodies—a wide definition, as you know—to carry out their human rights due diligence responsibilities under the UNGPs. They have those responsibilities and international obligations, and what the Bill does is wholly suffocate the ability of public bodies to carry them out.
Essentially, the Bill does that by saying that a public body is not able to take account of the human rights record of a state, or companies operating within a state that is carrying out human rights abuses, except in specifically exempted cases. As we know, and as has been highlighted to you in previous evidence, the specific exemptions have significant loopholes, but even leaving those aside, there are still international crimes and human rights violations that are not caught. I will give you an example: suppose I am a public body and I want to stop investing in a military company that is supplying weapons to Saudi Arabia and UAE that are being used to commit war crimes in Yemen. This Bill will stop me from being able to do that. We know that the Bill will mean that public bodies cannot carry out and adhere to their due diligence responsibilities.
Something that is extremely pernicious from our perspective is that the Bill will have a significant chilling effect on public bodies. If I am a public body, what incentive do I have to do appropriate due diligence—both environmental and human rights due diligence? If I do that and something arises, and then one of the enforcement bodies imposes a notice on me that requires me to send all the information I have about the decision I made, given the fact that the Bill is so ambiguously worded that it only needs to be “a consideration”, how am I to know that I will not be penalised? As a public body, I would not be in anyway incentivised. The Bill runs a coach and horses through ESG responsibilities, human rights responsibilities and due diligence responsibilities.
I know the Government have consistently said that this is about public policy and ensuring that public bodies do not carry out their own foreign policy. What the Bill actually does is stifle public bodies and the Government from carrying out their own responsibilities and, on the face of it, complying with international law. It is totally inconsistent as well with their own business risk guidance and the implementation of their own UNGPs. It is a hammer through that. Anyone who tells you that it is not has not adequately read the Bill.
Before I hand over to my colleagues, I would just say that I am a lawyer who has been working in this jurisdiction for a number of decades now, and I can say that I have never read a piece of legislation that is as badly worded as this. It is ambiguous and runs a coach and horses completely through ESG responsibilities and business and human rights responsibilities. I think it is a very pernicious and worrying piece of legislation, and I am very happy that the Committee is seized of the matter.
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
To use the same approach I advocated for the previous question, if the two other witnesses want to concur with or dissent from the response that Mr Timms gave, could they say so and perhaps raise any additional points that they think would be helpful to the Committee?
Yasmine Ahmed: Yes, I wholly concur with what Dave said. I would just add that first, as Dave noted, it has to be illegal. Fossil fuels, not necessarily the extraction of fossil fuels, are not illegal—that has been well covered. What about a situation where there are dual considerations? We see many situations where deforestation happens, for example, and there are attacks on indigenous communities and human rights defenders. What happens then? Is that caught by the Bill or not? As I mentioned, there is a litany of other human rights abuses and international crimes that are not captured by the Bill, so the exemptions are certainly by no means exhaustive. The very point that I would argue is that the Bill cannot, because the whole point of the Bill is to stop public bodies being able to carry out their due diligence responsibilities effectively.
Peter Frankental: I concur with Dave, but I want to add one point on the exemptions. The vast majority of cases reported of companies abusing human rights are not litigated—they are not subject to civil or criminal litigation; they are exposed by the media or by non-governmental organisations—so the exemptions defined in terms of breaches of law are unlikely to apply and no public body would feel confident in using the exemptions unless there has been a legal case. In so many jurisdictions, the law either is not in place or there is corruption or weak regulatory systems. The independently commissioned report on modern slavery by Frank Field, Baroness Butler-Sloss and Maria Miller drew attention to the very weak regulatory systems in the UK for implementing the Modern Slavery Act, so any reliance on the law will put public bodies in a very weak position.
Alex Norris
Q
Dave Timms: You could increase the scope of that exemption, but you would still be left with all the problems that have been pointed out. You could have the environmental misconduct exemption extended to any environmental issue or any issues surrounding environmental harm, or include anywhere that there is a breach of international environmental treaties or agreements, but that would still leave you with the problem that Yasmine pointed out: the fact that in so many cases, environmental problems are related to human rights abuses. Look at logging in South America, where there is a high degree of overlap with human rights abuses; you would not be able to do it. You also would not be able to deal with the problem you have in clause 1, which is that any activity from civil society would be dragged into this as well. Often environmental organisations such as Friends of the Earth will campaign around concerns that overlap the environment and human rights. You might be able to chip away at the damage, but it is really hardwired into this from the start.
We have some experience of dealing with the kind of language in clause 1, which talks about a “reasonable observer”, because it is really similar to the chilling effect caused by the language in electoral law that bites on third-party campaigners, where you must have regard to what is reasonably intended to influence voters. That has had a huge chilling effect, which has been documented by parliamentary Committees, on the activity of civil society in campaigning on legitimate issues around election periods. We have seen language like this: it has been drafted in a way that is vague, and language similar to this has been shown to have a chilling effect on the activities of legitimate civil society organisations trying to achieve legitimate aims.
The Chair
Does anyone have anything to add to that? No? Okay. I will come next to Dr Luke Evans.
Dr Evans
Q
Yasmine Ahmed: What is very clear is that our organisation says that public bodies have to discharge their responsibilities under business and human rights of the UNGPs, and they have a responsibility to comply with international law. That is the very point that we are trying to make here. Let us set aside BDS, because what the Government are doing with this Bill is stifling the ability of public bodies to discharge the Government’s own responsibilities and obligations under the UNGPs and under international law. That is what this Bill is doing. That is the effect of the Bill and that is the problem with the Bill.
I wholly agree with Peter’s position on BDS, as does Human Rights Watch, and the right of individuals and the importance of people being able to advocate for the rights of Palestinians as they advocate for the rights of other individuals, but that is not what we are talking about here, because the effect of this Bill—actually, the crunch of this Bill—is that it stops the Government complying with their own responsibilities and international obligations.
Dr Evans
Q
Yasmine Ahmed: What I think, as I have said, is that when a public body is making financial decisions on procurement investment, it should take account—it has to take account—of the human rights and environmental implications of what it is doing. That is the answer.
The Chair
Q
Peter Frankental: I will just add that a decision by a public body not to procure with a tenderer should not necessarily be seen in terms of BDS. It is not necessarily a boycott; it is a means of effecting due diligence. If it is done in a way that is proportionate and on a case-by-case basis, as the vast majority would be, I would not see a problem with it.
I will just add something from the Government’s impact assessment of the Bill. It is made absolutely clear in the impact assessment that there is no definitive evidence linking public procurement and investment to discrimination on grounds of race, religion or belief. That is set out in three paragraphs of the impact assessment—paragraphs 60, 61 and 64. So, the main premise behind this Bill, that it is necessary to prevent public bodies from engaging in antisemitism, is not compellingly evidenced, according to the Government’s impact assessment.
Only one procurement case is given, that of Leicester City Council, which took a decision not to procure with Israeli settlements. That was challenged in the courts on grounds of a breach of the public sector’s equality duty, and the Court of Appeal found that Leicester City Council had not breached its equality duty, was not being antisemitic and was mindful of community cohesion, and that its decision not to procure from settlements was based on a respected body of international opinion, including the UN, the EU and the UK’s own policy on not recognising the settlements as legal. It is perfectly possible for public bodies to take these decisions without that being seen within the sweeping form of BDS.
The Chair
Thank you. Two more people have indicated that they want to ask questions. In order to save time, I will take the two questions and then perhaps the witnesses can determine between themselves who will answer them.
Ms Qaisar
Q
The Chair
I will bring in Brendan Clarke-Smith now for his question, and then you can share the answers between you.
Brendan Clarke-Smith (Bassetlaw) (Con)
Thank you for your input today. You mentioned that people may be subject to equalities claims with the way the law is at the moment. Do you not feel that having a clear policy on this, both nationally and in terms of foreign policy, can protect local authorities if they diverge from it? That is why this Bill makes the picture a lot clearer for local authorities and avoids that situation where they may put themselves under threat and in breach of equalities laws.
The Chair
I do not know who wants to take on the two questions. I will leave it to you.
Peter Frankental: Sorry, I could not hear the first question. Could you please repeat it?
Ms Qaisar
It was to ask what impact the Bill will have on the UK’s relationship with those in the occupied territories and with Palestinians here, across all four nations, who wish to exercise their freedom of expression so that the actions of the Israeli Government can be held to account.
The Chair
Mr Frankental, will you tackle that one?
Peter Frankental: I will begin with the second question. Sorry, I did not completely hear the first question. On foreign policy, I do not believe that procurement decisions that are taken on the basis of due diligence engage foreign policy at all. That is a human rights or environmental due diligence matter.
Yasmine Ahmed: To add to that, if you are talking about trying to give certainty to public authorities, what this Bill does is create complete uncertainty. The UK’s business risk guidance and the UNGPs say something completely contrary to what this Bill says in terms of being cautious, considering your human rights and environmental responsibilities, and doing adequate due diligence, and in terms of the UK Government’s position on the occupied territories and particular settlements within them. How we provide clarity to public bodies is a really important question. This Bill is certainly not the way to do it, because it provides much more uncertainty.
I am happy to attempt to answer the other question, if that is helpful. What the Bill means in relation to people in occupied territories is a really good question. I might expand on it slightly to say that from an international relations perspective, we should be thinking about a Bill that combines and excludes activities in Israel within the green line and the occupied territories. I am being very clear about what that says in relation to what the UK Government are saying about the Russian occupation in Ukraine, and the crimes that are being committed in that context.
It is a really important question because we should be thinking about community cohesion from both sides of the coin. What the Bill essentially says is that advocating for divestment from Israel, where Israel is committing crimes and a company is implicated in those crimes or human rights abuses, is wrong because it is linked to antisemitism. The other side of the coin—as you rightly say—is about what that does for Palestinian groups advocating for their rights, and the community cohesion between the two groups. A lot of the Jewish communities we have been engaging with have said, “We do not want our name associated with the Bill, because we are not saying that antisemitism is linked to the crimes and abuses that are being committed by Israel.”
It is very clear that there is a problem of antisemitism in this country; you just have to look at the statistics. However, the way the Government should be approaching the issue, if they were properly thinking about it, is through the equalities duty, education and speaking to communities. They should not be creating a law that is going to create many more problems, provide impunity, and undermine their business and human rights responsibilities and international obligations.
The Chair
Thank you very much. I am afraid we have reached the end of this panel. I thank the three witnesses for the open and frank way in which they have addressed the questions raised by Committee members. We are grateful to them for being here today.
Yasmine Ahmed: Thank you so much.
Dave Timms: Thank you.
Peter Frankental: Thank you.
Examination of witness
Richard Hermer KC gave evidence.
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.
Chris Stephens
Q
“effectively equates the OPT with Israel itself and is very difficult to reconcile”
with Britain’s support for a two-state solution. Will you expand on those comments?
Richard Hermer: Yes, of course. The manner in which the Bill does that is it affords a unique protection to just one category, which is Israel, the occupied territories and the Golan Heights—one protection from being placed on the list of exceptions—whereas any other country in the world can be placed on the list of exceptions and therefore subject to adverse economic decisions by public bodies through the fiat of the Secretary of State or the Cabinet Minister. That power is denied to the Secretary of State or Minister in respect of anything to do with Israel, the occupied territories or the Golan Heights. It is accorded a special status, and that can only be changed by primary legislation. In that sense, it separates out Israel and the OPT from the rest of the world.
Wayne David
Q
Richard Hermer: Yes. I am mindful that we have only 15 minutes, probably now 10. Can I just give you a brief framework, because I think I have to disagree with the outline that Mr Barrett gave you? International law has always been key to this country, and very broadly speaking it operates on two levels. The first is on the international plane. That is our obligation to comply with international law at the international level. Secondly, in so far as it has been incorporated into English domestic law, the Government have to comply with it on a domestic level.
It is the international law level that I flagged up first in my written advice. As a country, we have always played a leading role in upholding and, indeed, creating international law. Both main parties have a proud history of that. It has fallen into slight disrepute in more recent times as we have had some legislation that expressly seeks to avoid our international law obligations, but generally speaking, that is something we can be proud of. There are two aspects in which that is relevant: first, because the Government have contended that this does comply with our international law obligations, and secondly, because the Committee will no doubt wish to ascertain whether it in fact does or there is a risk that it does not. I hope that answers your question, Mr David.
Dr Evans
Q
Richard Hermer: There are some examples of American states passing what I would describe as more extreme versions of this. France is interesting because the Strasbourg court has looked at France on two occasions and the most recent one upheld that its laws were incompatible with article 10. There is not much else out there by way of example. Israel has its own laws on BDS. I am not sure where that takes us. Ultimately, Parliament has to look at this Bill on its face. How it stands up in comparison does not tell us anything about international law—it might help with the context, but beyond that, I am not sure that it would necessarily help the Committee.
Ms Qaisar
Q
Richard Hermer: I am firmly of the view that it is incompatible with article 10 of the European convention on human rights, which is incorporated into our law via the Human Rights Act. I have listened carefully to the views of others, not least the way that it has been explained by the Minister, and I respectfully disagree.
There are two elements to this. First, who does it bind? There is no dispute that it does not bind a public authority per se, but it would undoubtedly bind a leader of a council or a vice-chancellor of a university—that is, the full array of public authorities or bodies acting as a quasi-public authority. Certainly, it is incapable of engaging the free speech of those individuals. Secondly, there is an analogue to the free speech of the individual in article 10, which is also the right of the public to have information. This engages article 10 in both those ways.
Once we have engagement of article 10, it then falls to the Government to justify it under article 10(2) I have set out in my first opinion the text of article 10(2). There are a number of hurdles that a Government would have to pass. We should also remember that this is not just in the context of BDS; this is in the context of any country and any conflict. I set that out in paragraph 34 of the opinion that the Labour party published. In order to establish that there was no breach of article 10, it would need to be shown that the restrictions were necessary
“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
It is almost impossible to see how there could be a justification here. As matters stand, this would be deemed incompatible with the Human Rights Act.
Nicola Richards (West Bromwich East) (Con)
Q
Richard Hermer: No, I do not. In the human rights movement, there are lots of campaigns that focus on one particular country. For example—and I do not wish to be trite—if you look at the Rohingya, we are targeting Myanmar. If you look at what is going on in Yemen, most of the campaigning is around Saudi Arabia. You can pick examples from all around the world.
Undoubtedly, the BDS movement, as it is known, focuses on Israel. But often human rights campaigns focus on individual counties, because it is often individual countries that are committing human rights abuses. From a legal and human rights perspective, I do not feel that there is a need for additional protected status—all the more so, if I may say, in respect of the occupied territories and the distinction that is drawn there. I find that, on all sorts of levels, very hard to understand.
Wayne David
Q
Richard Hermer: I think I set out quite a few in writing. First, clause 1 could be taken to mean something entirely different to that which I think the Government intended—to just focus on particular territorial disputes rather than, more generally, the human rights record of a company.
I am afraid that, again, I disagree with Mr Barrett about the dangers of the “reasonable observer”. In some areas of the law that is a common phrase. But here, if the Bill proceeds, it is a pretty binary question: have you offended the Act and taken into account considerations that you should not, or haven’t you? I do not understand what the test of reasonable observer adds beyond uncertainty and, potentially, injustice. On that analysis, you can have no intention to break the law, but a reasonable observer may nevertheless consider that you did. The vagueness there is potentially very troubling. There are also the other examples I have put out in writing.
Obviously, a great deal of oxygen has been taken up on BDS, and one can understand why that is. But I would stress—as I hope I have done in writing on two occasions—that the impact of the Bill extends across the whole panorama of human rights and this country’s engagement with human rights, not just one particular incident. It engages not simply what local authorities can do, but the full range of public bodies in this country.
The Chair
Thank you for the brevity of your responses, which enabled us to get a lot more questions in than I had anticipated in such a short session. It has been very helpful. Thank you very much.
Examination of witness
Melanie Phillips gave evidence.
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.
Wayne David
Q
Melanie Phillips: I am certainly concerned about China. And, by the way, thank you very much for the compliment—flattery will get you everywhere. I am concerned about China, and I would like and prefer our Government to take a stronger view about China—a stronger approach to China. But that is not really the point at issue here; the point at issue here is that it is for the Government to determine foreign policy—I may disagree with that policy, but it is for the Government to determine it. If local authorities or public bodies—bodies taking public money—go off on a frolic of their own and boycott China, Saudi Arabia or whoever, you have a kind of anarchy, and you cannot have that. To me, that is the issue.
As I understand it from what Ministers have said and from my reading of the Bill and these exemptions—obviously, you realise I am not a lawyer—the Bill allows public bodies who take a view that the procurement decision they are being asked to take would involve the use of Uyghur slave labour in China to use the exemptions to not go down that procurement road. But the exemptions are limited to a number of areas that the Government have deemed to be on the right side of the line when it comes to saying that it is for the Government of the day to determine foreign policy, which I think is a sensible rule for the Government of the country.
Nicola Richards
Q
Melanie Phillips: I do not think the Bill itself seeks to make tensions worse or better, but it is a fair question to ask whether it will have that effect both here and in Israel and the disputed territories. The fact is that people who advocate boycotts of Israel over its behaviour in those territories, which classically involve targeting companies that have a presence in them, believe that this is hurting Israel. Well, it does, but the people it really hurts are the Palestinian Arabs who work for these organisations and companies. They have said over many years that they wish that the west would not go down this road. It is a disaster for them when it goes down this road. They and their families depend for their livelihoods on these companies. Boycotts are performative from their point of view—they are performative virtue signalling, which not only does not address the political challenges and difficulties that they believe they have but actually takes away their livelihoods. So this hurts them, and it does nothing about community divisions in these areas, because a state of—whatever you like to call it—war, insurrection, permanent threat of terrorist violence and so on engulfs this area, and Israelis are being killed, or there are attacks intending to kill them, literally every day. This does not affect that at all. What it would do, in my view, as I have said already, is make the situation of British Jews worse—it would affect it very badly. It would increase community divisions here; it would increase suspicion, aggression and division between the Jewish community and the non-Jewish community here.
Bob Blackman (Harrow East) (Con)
Q
The Chair
Before I ask you to respond, I will bring in Steve McCabe and, with your forbearance, ask you to perhaps answer both questions together.
Steve McCabe
I think my question was the same. You said that the Bill would benefit from amendment. I wondered what you had in mind.
Melanie Phillips: As I have said before, I am not a lawyer, and I really would not presume to say what amendments there should be. I would suggest that all Bills, as I am sure you know better than I do, are susceptible to amendment and would benefit from amendment. When I wrote what I wrote, I was really reflecting that I had seen various people make various observations about things they thought were not right. I do not know whether that is right or not, but I am absolutely sure that there is scope for amendment. Consequently, I would hope that the Bill would be amended for the better. That was really the only thing I was trying to get at.
The Chair
Thank you. I would like to thank the witness for her characteristically forthright responses, which have been very helpful to the Committee. I would also say that, in my experience—I am sure you share it—it is as well to take compliments wherever you can get them. With that, thank you very much for your attendance. We are very grateful.
Ordered, That further consideration be now adjourned. —(Jacob Young.)