Economic Activity of Public Bodies (Overseas Matters) Bill (Fourth sitting)
Tuesday 12th September 2023
(8 months, 1 week ago)
Public Bill CommitteesRead Full debate Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 View all Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts 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.
The Chair
I have a few preliminary announcements. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. I remind people to switch electronic devices to silent, please. Tea and coffee are not allowed during the sitting.
The selection list for today’s sitting, which is available in the room, shows how the selected amendments have been grouped for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments take place not in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection list shows the order of debates; decisions on each amendment are taken when we come to the clause to which the amendment relates.
The Member who has put their name to the leading amendment in a group will be called first. Other Members will then be free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate on a group, I will again call the Member who moved the leading amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. Any Member who wishes to press any other amendment in a group to a vote needs to let me know.
Clause 1
Disapproval of foreign state conduct prohibited
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
I beg to move amendment 22, in clause 1, page 1, line 5, leave out
“must not have regard to a territorial consideration”
and insert “must not act”.
This amendment would remove the reference to a “territorial consideration” in the legislation.
The Chair
With this it will be convenient to discuss the following:
Amendment 31, in clause 1, page 1, line 6, leave out from “that” to “influenced” in line 7, and insert “is”.
This amendment is to probe the use of a subjective, rather than an objective, test to establish whether a decision-maker has contravened clause 1.
Amendment 23, in clause 1, page 1, line 9, leave out subsection (3).
This amendment would remove the reference to a “territorial consideration” in the legislation.
Amendment 3, in clause 1, page 1, line 13, leave out “or territory”.
This amendment clarifies that considerations for the purposes of section 1 must relate to the foreign countries, rather than territories within foreign countries.
Amendment 32, in clause 1, page 1, leave out lines 20 to 22.
This amendment is to probe the impact of the legislation on individuals, such as those working within public authorities.
Clause stand part.
Ms Qaisar
It is a pleasure to serve under your chairmanship, Sir George.
Antisemitism is on the rise across the UK and the globe. It is a disgusting stain on society, and something must be done to eradicate it completely. There must be strong and meaningful legislation to tackle it so that Jewish people feel and are safe. That is something that I and my SNP colleagues want to see, but frankly it is also something that people across the House want to see. Sadly, however, the Bill is not an appropriate approach.
Last week we heard from Yasmine Ahmed, the UK director of Human Rights Watch, who said:
“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”.––[Official Report, Economic Activity of Public Bodies (Overseas Matters) Public Bill Committee, 7 September 2023; c. 86, Q124.]
The Bill is in need of significant amendment to tackle some of the fundamental flaws in its current form. Some clauses need to be scrapped altogether. The language in clause 1 creates ambiguities around the objectives of the Bill; it is so poorly drafted that it is difficult to determine what the Bill seeks to accomplish. Of particular concern is the phrasing relating to “a territorial consideration” in clause 1(2). As drafted, it could be interpreted in such a way as to focus the Bill solely on limiting disagreements among decision makers on territorial matters, rather than on the foreign and domestic actions of foreign states. That means that if a decision maker were to make an investment or procurement decision based solely on the domestic actions of the foreign state that did not relate to a territorial issue, the view could be taken that it was not covered by the Bill.
In written and oral evidence, Richard Hermer KC explained that if a decision maker refused to buy goods from China based only on its track record on human rights, they would not be covered by the Bill. If, however, the same person refused to buy goods from China because of its forced labour impacting cotton in Xinjiang, that decision would be covered by the scope of this Bill. That interpretation of clause 1 creates obvious issues around the Bill’s applicability. We therefore ask the Government to accept amendment 22.
Clause 1 also seeks fundamentally to reduce the autonomy of local councils and the devolved nations to take a stance on human rights matters. The measures that seek to remove the ability of local government to take a stance based on the political and moral actions of a foreign state mark a dangerous step in reducing autonomy to speak out in support of human rights. Political discourse in debates over foreign policy matters to everyone. It is legislated here in Westminster, but it enriches society when people are involved in the discussions. Central Government sit upon policy, legislation and agenda, but it is a cornerstone of democracy that people at a localised level be able to have discussion and debate around human rights, which is inevitably linked to foreign policy.
I am not calling for foreign policy to be set by local government, but as a society we benefit when local government makes decisions based on human rights. We saw that in the 1980s, as my hon. Friend the Member for Glasgow South West and I brought up repeatedly last week. In 1981, Glasgow City Council stood up against apartheid in South Africa. Glasgow was the first city in the world to award Nelson Mandela the freedom of the city. Five years later, St George’s Place in the city centre was renamed Nelson Mandela Place. In 1993, Nelson Mandela visited Glasgow. In the city chambers, he proclaimed:
“While we were physically denied our freedom in the country of our birth, a city 6,000 miles away, and as renowned as Glasgow, refused to accept the legitimacy of the apartheid system, and declared us to be free.”
Steve McCabe (Birmingham, Selly Oak) (Lab)
As a Scot, I am very proud of the actions of Labour-led Glasgow City Council in changing the name of St George’s Place and in being the first city to give Nelson Mandela freedom of the city. I have looked at the Bill, and I cannot see anything in it that would have prevented Glasgow City Council from doing that; I agree that there are things in it that have a chilling effect on local government and public institutions, but I am not quite clear how relevant the hon. Lady’s reference to the Bill is.
Ms Qaisar
Essentially, I want to talk about the impact that a local government can have when people at a localised level can outline how they feel about human rights records. This Government should take heed of that, because at that time it was Thatcher’s Government who imposed sanctions on apartheid South Africa and maintained close links with political leaders in apartheid South Africa.
I have tabled a number of amendments to clause 1. I have spoken at length about amendment 22. Amendment 31 is intended to probe the use of a subjective rather than objective test to establish whether a decision maker has contravened clause 1. In reality, there are so many amendments that could be made to clause 1. That is not just my view; we heard it from numerous witnesses during our evidence sessions last week and from multiple organisations that have submitted written evidence. The Minister should really go back and start from scratch.
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
With this it will be convenient to discuss the following:
Amendment 15, in clause 3, page 2, line 28, leave out paragraph (b).
This amendment, and Amendments 16 and 17, seek to remove Scotland from the extent of this Bill.
Amendment 16, in clause 17, page 10, line 38, leave out “Scotland”.
See explanatory statement for Amendment 15.
Amendment 1, in clause 17, page 10, line 39, at end insert—
“(1A) Section 1 does not apply to decisions made by—
(a) Scottish Ministers, unless a motion has been passed by the Scottish Parliament indicating its consent to this Act;
(b) Welsh Ministers, unless a motion has been passed by Senedd Cymru indicating its consent to this Act;
(c) a Northern Ireland department, unless a motion has been passed by the Northern Ireland Assembly indicating its consent to this Act.”
Amendment 17, in clause 17, page 11, line 19, leave out “Scotland”.
See explanatory statement for Amendment 15.
Clause stand part.
Ms Qaisar
Scotland has its own legislative framework under the Procurement Reform (Scotland) Act 2014, along with associated regulations and guidance. That legislative framework places duties on certain contracting authorities to demonstrate how the social, economic and environmental aims of procurement have been considered in a consistent manner, as required by the sustainable procurement duty under the Act. For example, a contracting authority is required to include a statement of its general policies on the procurement of fairly and ethically traded goods and services in its procurement strategy.
I have tabled a number of amendments in this group. Essentially, they can be summed up by this: Westminster might have the powers of reserved matters, but Scotland is a devolved nation. Scotland has its own Parliament and its own Government; it is not for Westminster to turn around and tell Scotland what she should do, because that Parliament was elected democratically by the people of Scotland. Devolved Governments, including the Scottish Government, make their own public procurement decisions. That is one manner in which they can encourage companies to behave in a way that is in line with human rights, including labour rights and environmental concerns.
Efforts made by devolved nations will be hampered by this Bill. We heard that last week from the Scottish Trades Union Congress. During evidence, Roz Foyer spoke about the Fair Work First scheme, which gives guidance for organisations seeking an award through public sector grants, contracts and other funding. Essentially, it is the Scottish Government’s approach to contracting. Scotland does not have the power to legislate on employment law—yet—but through programmes such as Fair Work First we have wide-ranging guidance and a number of benchmarks that contractors are held to in order to receive public money.
As I say, Scotland cannot implement laws in relation to employment, but it uses the right to implement and use money accordingly. Roz Foyer ended her point with something absolutely crucial. She said:
“I believe that is a very legitimate way to create a landscape of better employment rights and good practice, both domestically and internationally, and that work would be severely undermined by the current proposals.”––[Official Report, Economic Activity of Public Bodies (Overseas Matters) Public Bill Committee, 5 September 2023; c. 71, Q113.]
It is unprecedented that the Bill would prohibit Scottish Government Ministers from taking moral or political objections towards foreign state conducts into account when making procurement and investment decisions. A key concern is that the Bill alters the Executive competence of Scottish Government Ministers. Therefore, earlier this year, they lodged a legislative consent memorandum within the Scottish Parliament, as the Minister knows. Scottish Ministers have the ability, to the extent permitted by procurement legislation, to consider the country or territorial origin or other territorial considerations in a way that indicates political or moral disapproval of a foreign state when making decisions about procurement or investment.
An example, which the memorandum talks about, is the position taken by Scottish Government Ministers in relation to procuring goods from Russian suppliers following the invasion of Ukraine. That was the correct thing to do. If the Bill passes it will restrict, if not entirely remove, that ability and alter the executive competence of Scottish Ministers.
As we know, clause 4, which I will refer to later on, would make it unlawful for Scottish Ministers to even state that they would have acted differently if it were not for the provisions of the Bill. The Scottish Government’s memorandum outlines three principal decisions as to why they should not give their consent to the Bill, and I want to outline them. When the Committee hears the Scottish Government’s rationale, our reasons for tabling the amendments will be clear.
First, can the Minister provide some clarity? It is not clear what problem the UK Government seek to address by including Scottish Ministers within the scope of the Bill. [Interruption.] Hear me out. I know the Minister will probably turn around and say, “Scottish Government Ministers have to listen to the UK Government because we have reserved powers on matters of foreign policy.” However, we struggle to understand this. The Scottish Government have always acted responsibly and in line with the UK’s international commitments. Scotland is not an independent country—yet—so the argument that a decision of the Scottish Government in relation to a particular procurement or investment process may be mistaken by overseas Governments for an alternative UK foreign policy lacks credibility. It just does not make sense.
When I join international delegations, I will talk about the good work that the SNP’s Scottish Government are doing. For example, people are quite interested in the baby box—a groundbreaking piece of policy that gives every single baby born in Scotland a box. Please bear with me, Chair, as this will come back to the Bill. When I am abroad and I talk to people about the SNP’s baby box, they understand that the legislation is from Scotland; it is not UK-wide. People might not understand the intricacies of devolved and reserved matters—as a former modern studies teacher I take great pride in explaining this to people—but they do understand that foreign policy is set by the UK Government. It is not clear what the Bill seeks to address by including Scottish Government Ministers.
Secondly, the Scottish Government take a value-based approach to international engagement. I know that because up until my promotion to SNP levelling-up spokesperson last week, I led on international development for the SNP—I will give myself that shout-out. [Hon. Members: “Hear, hear!”] I thank hon. Members. I know that at the heart of the Scottish Government, international activity creates opportunity at home, broadens horizons, attracts high-quality investment and ultimately benefits the people of Scotland. While the Scottish Government will always meet the obligations placed upon them by international law and treaties, people in Scotland quite rightly expect that decisions should not be made in an ethical or moral vacuum.
Thirdly, the Scottish Government memorandum talks a lot about clause 4 and I will speak about that later. However, I would be interested to hear from the Minister about this. I still do not understand, as my hon. Friend the Member for Glasgow South West said, what a Scottish Government Minister needs to say when on television or giving a quote to a newspaper. Do they have to turn around and say, “I am talking as a Scottish Government Minister”, “I am talking as an SNP MSP,” or “I am talking as an individual”? We need some clarity from the Minister on that.
The Scottish Government, of course, recommended that the Scottish Parliament does not give consent to the Bill. I urge the Minister to take heed. My amendments are all in regard to Scotland and understanding why Scotland has been included in this. Can the Minister take heed and pay attention to that?
Chris Stephens
It gives me great pleasure to follow my hon. Friend the Member for Airdrie and Shotts, who is taking over as the levelling-up spokesperson after this Committee. I want to support her amendments for several reasons. First, procurement is devolved to the Scottish Parliament. That is clear, as we heard in the evidence sessions in the questions asked not just by myself but by my Labour colleagues around the effects of procurement in the devolved Administrations.
There is real concern that the Bill seems to override the devolved Parliaments in this area. The devolved Parliaments clearly and correctly suggest that they would want to use their procurement in an ethical way. The problem that we have, of course, is that witness after witness was saying, and those speaking on behalf of the Bill were saying, “It’s up to the Westminster Government to dictate foreign policy.” Well, that gets us only so far. Every local authority that I can recall in Scotland in the lead-up to the Iraq war had a vote on whether it supported the war. Will this Bill seek to stop that sort of activity? Witnesses said last week that this would have stopped what Glasgow District Council did in 1981 in relation to South Africa.
Half a billion years ago, the land masses now known as Scotland and England joined up physically. They are playing a football match tonight. I am quite nervous because Scotland do not do too well against the lesser nations when it comes to football, as we know, but we will see what happens tonight.
We have to be very clear here. The Scottish Parliament was reconvened in 1999. Devolution was approved overwhelmingly by the people of Scotland. I do not think that the people of Scotland will take too kindly to a Westminster Government who seek to impinge on the devolved matters and devolved legislation of the Scottish Parliament.
Wayne David
Thank you, Sir George; it is a pleasure to serve under your chairmanship. I would like to speak to amendment 1 and make it clear that it is to clause 17 but there is an opportunity to discuss it at this time because it deals with the issue of devolution. As is very clear, the Bill applies to the whole United Kingdom, but for it to operate in Wales, Scotland and Northern Ireland, certain legislative consent motions have to be agreed under the Sewel convention. That is because the Bill impinges on at least some of the competencies of the Ministers of the devolved institutions. That is made clear by the Library note. There is an impact on the devolution settlement, and it has to be worked through within the context of that settlement.
Amendment 1 makes the process clear, to avoid any misunderstanding. As we know, there have been constitutional debates, even arguments, between the Government here in Westminster and the devolved institutions, particularly the Scottish Parliament. This amendment simply sets out what is legally the case. It is not a contentious amendment. It simply puts in black and white what is the reality and should be adhered to by all parties. The Government had advance notice of the amendment, and there has been some discussion of it. I urge the Government, given that they are adhering to the idea of mutual respect between the institutions of the United Kingdom, to accept amendment 1. It is uncontentious; it is Government policy. It makes clear what the devolved settlement is in reality.
Chris Stephens
The hon. Gentleman is making an excellent point. Does he support the position that I laid out, which is that procurement is viewed very seriously by the devolved Administrations and there is concern that the Bill seeks to interfere negatively in that?
Wayne David
Many aspects of procurement and other aspects touched on in this Bill are in part devolved to the various institutions. We have a complex mosaic in the UK: the devolution settlements for Wales, Northern Ireland and Scotland are different in several respects. Nevertheless, the overriding fact is that there is definitely an impingement on devolution powers, however they are defined in the circumstances, and the Sewel convention is needed to ensure that there is common agreement on what is being done by central Government.
I refer in particular to the Northern Ireland situation, because we have received written evidence from the chief executive of the Northern Ireland Local Government Officer Superannuation Committee, David Murphy. He makes the point that as far as Northern Ireland is concerned, there is the Public Service Pensions Act (Northern Ireland) 2014, which effectively devolves public sector pensions in large part to the Northern Ireland Assembly. He goes on to conclude, after having described the arrangements:
“It is our understanding that in the absence of the NI Assembly sitting it will not be possible to obtain a Legislative Consent Motion for the proposed legislation.”
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.
The Chair
Amendment 1 will be taken later, but it is helpful that that intention has been signified. We are now on amendment 30.
Question put, That the amendment be made.
Chris Stephens
On a point of order, Sir George. There was some confusion because of the number of amendments in the group. Could you clarify that some of the amendments we have debated are to other clauses, and that there will be Divisions when we get to those clauses? It would help Members if you could explain that.
The Chair
That is indeed a point of order. The remaining amendments in the group will be taken either in the next clause or later, when we come to clause 17, because they are consequential on the lead amendment.
Clause 3
Exceptions
Alex Norris
I beg to move amendment 4, in clause 3, page 2, line 17, leave out subsections (2) and (3).
This amendment would remove provisions allowing Ministers to amend the Schedule, via regulations, to add a description of decision or consideration, or amend or remove considerations added under previous regulations.
Clause 3 makes a number of exceptions, set out in the schedule, to the proposed ban on decisions made by public bodies in respect of foreign states—that is, it allows for certain conduct to be in scope for ethical decision making, such as environmental concerns. We support the principle of excepting certain powers from the Bill, and Members will not be surprised to hear that we are pleased to see labour rights there. However, the clause then bakes in a rather unacceptable and significant power grab by the Secretary of State over the ethical procurement decisions that a public body may wish to make.
Looking around the room, I see some Members who have been here longer than me and some who have been here for a bit less time, but I bet everyone will agree that one thing we were not told before we came here was that while we thought we would be talking about great matters of state, we would end up talking about Henry VIII regulations. Whatever happens, all roads lead to this bit of the Bill. I am continuing that unbroken streak, though perhaps not at length, as this argument is made frequently.
Clause 3(2) will provide the Secretary of State or Minister for the Cabinet Office with the power to amend this vital schedule in which the exceptions are laid out. That is an eccentric and totally unacceptable and unnecessary provision. This Parliament is rightly spending lots of time on this legislation. We have taken oral and written evidence from witnesses and will have multiple debates in the Chamber. We have convened this Bill Committee and will go through the Bill line by line, and then this process will be repeated in the other place. That is so we get the provisions right.
What we are being asked to do in the light of clause 3 and the schedule is to divine whether we think the range of exceptions is right. Is it broad enough? Is it too broad? Should we add any more? Should we take any out? That is the purpose of Parliament and parliamentary scrutiny. Yet we are being asked to put a provision in the Bill that the Secretary of State can just change that anyway via secondary means. That creates an unacceptable imbalance between the Executive and the legislature.
The problem is best understood in contrast to subsection (5) because that is a mirroring provision. It allows the Secretary of State to add or remove countries from the list of places that public bodies may boycott. We have not sought to amend that, because we know from recent painful experience that foreign affairs have a habit of moving on, and there must be an opportunity for the Government of the day to make changes swiftly. That is entirely reasonable in the case of foreign affairs and entirely unreasonable in the case of exempted activities, because they will not change quickly. Environmental and labour concerns are anchor issues that will dominate debates long after all of us are gone. The Secretary of State and the Government more generally do not need the power to vary that quickly.
If we do not accept the amendment and we accept what is in the Bill, what all colleagues—Opposition and, frankly, Government Back Benchers too—are being told is, “Do all the due process, but don’t worry; we will just change it later if we fancy it”. That is not good enough in a parliamentary democracy, and we should delete the provision today.
Kim Leadbeater (Batley and Spen) (Lab)
I will make just a short contribution, if I may. I associate myself with the comments of our shadow Minister. The matters covered by the Bill relate to issues of fundamental importance: the interpretation of UK foreign policy and the ability of public bodies to respond. We live in uncertain times, and the UK’s position as an influential country on the world’s stage will understandably need to change in response to events in many areas of instability. In those circumstances, it would be fundamentally wrong for Ministers to reserve to themselves the power to amend the schedule in the Bill without returning to Parliament and giving MPs and, indeed, interested parties the opportunity to scrutinise and, where necessary, object to it. That is why I support amendment 4.
Steve McCabe
I will speak briefly about subsection (7), and in particular about amendments 5 and 6, tabled by my colleagues. As I understand it—
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.
Chris Stephens
The hon. Gentleman is making an excellent speech. In our evidence sessions, we heard very powerful testimony from Uyghur society and the Uyghur people, who said that we really need to look at this part of the Bill. Does he also agree that it is very interesting that witnesses on the Government’s side support disinvestment for China, for the very reasons that he has just outlined?
Alex Norris
I agree. After hearing that testimony, I reflected on one of the things that I love the most about my country—I think about this quite a lot—which is that we stand up for people who need it, whether by providing shelter or by never walking on the other side of the road. I see things through that prism. I think it is a really fundamental British value, and I am concerned that we will lose some of that. Of course, significant matters of foreign policy are the reserve of the Government of the day, but the issue should not just be left to Government Ministers. The outpouring of support for Ukraine, both in my city and across the country, showed that people take that seriously and want to have a role and a say—they want to be part of that process. That is part of building common cause, but I fear that this goes too far and will squeeze some of that out.
Our amendment 2 makes our approach to the matter very clear. If a public body acts only against a particular state—for instance, the world’s only Jewish state—while not applying the same approach to human rights abuses everywhere, such actions would be illegal. Our amendment would not just ensure that there are consistent decisions and that communities are not singled out; it would also strengthen our country’s commitment to stand against human rights abuses all over the world.
Our country has always defended the fundamental, inalienable human rights of all people. Procurement and investment decisions are part of that, and we should not shirk that role when it is the right thing to do. The amendment would ensure that public bodies could still play their part and that the contemptible actions of those who target one state while looking the other way when abuses are committed elsewhere are finally prohibited.
As I said on Second Reading, our amendment could be technically deficient—I am never sure whether we are supposed to admit that in Parliament, but it is clear anyway. If it is technically deficient—after all, I drafted it, and am perfectly willing to say that it is the work of a human being—we are more than willing to work with the Government to find something that works in both principle and substance. I hope to hear from the Minister that there is willingness to meet us a little bit on this, so that we can tackle the problem that we are all trying to address.
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.
Wayne David
I beg to move amendment 5, in clause 3, page 3, line 10, leave out paragraph (a).
This amendment removes the existing stipulation that the power to exempt a country or territory from section 1 may not be used in respect of Israel.
The Chair
With this it will be convenient to discuss amendment 6, in clause 3, page 3, line 11, leave out paragraphs (b) and (c).
This amendment removes the existing stipulation that the power to exempt a country or territory from section 1 may not be used in respect of the Occupied Palestinian Territories or the Occupied Golan Heights.
Wayne David
In its present form, the Bill will introduce a blanket prevention of public authorities’ ability to take into account human rights—the Government would say foreign policy—when making certain decisions. There can be exceptions; we have heard the Government mention Belarus and Russia. Yet for Israel, the Occupied Palestinian Territories and the Golan Heights to be exempted, it is not enough for a Secretary of State to bring forward a statutory instrument; primary legislation will be required.
We have a fundamental problem with the clause, which is the conflation of Israel with the Occupied Palestinian Territories and the Golan Heights. Israel is a sovereign state; the Occupied Palestinian Territories and the Golan Heights are areas that have been occupied since 1967, and the occupation is deemed illegal under international law. In fact, it is not simply international law; the Government themselves have—until now, it seems—held that position very firmly. Let me quote from a fairly innocuous document, the Government’s guidance on overseas business risk, which was only published in February 2022:
“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.”
That has been the Government’s position, clearly and consistently expressed.
Chris Stephens
The hon. Gentleman presents a very powerful position. Members on the Opposition Benches have been told by the Government that the Bill should comply with Foreign Office policy. It seems that the Government are now deviating from Foreign Office policy. It should not be one rule for the Government and one rule for every other public body, should it?
Wayne David
There might well be something in what the hon. Gentleman suggests. There is, to be honest, a not-too-subtle change in the Government’s emphasis and in their exposition on this matter. Equating Israel and the occupied territories is unique in any British legislation, let alone any Government statement; it questions the long-standing position of the United Kingdom supporting a two-state solution based on 1967 lines.
There is also the question of international law. In his first written submission to the Committee, Richard Hermer KC cited the advisory opinion of the International Court of Justice concerning the construction of a wall in the Occupied Palestinian Territories. In his second written submission, he also made reference to the United Nations.
I respectfully remind the Committee that the UK is a founding signatory of the charter of the United Nations and is obliged to comply with Security Council resolutions. Security Council resolution 2334 very clearly expresses the concern about Israeli settlements in the Occupied Palestinian Territories; I want to emphasise that point. Operative paragraph 1 of the resolution states very clearly that the Security Council
“Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace”.
Operative paragraph 5 imposes an international-law obligation on all states to ensure that they treat the OPT differently from Israel. It states that the Security Council
“Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”.
In summation, clause 3(7) is incompatible with international law, for two very solid, basic reasons. First, it gives special protection to goods and services from both Israel and the Occupied Palestinian Territories. Moreover, it gives greater protection to illegal settlements in the OPT than it does to any other state in the world except Israel. That is quite incredible. If that does not suggest a change in Government policy, what on earth would? It seriously draws into question the Government’s commitment to international law—if that doesn’t, I don’t know what does.
Secondly, clause 3(7) fails to differentiate between Israel and the Occupied Palestinian Territories. I do not want particularly to be in this Committee to make history: I want the Government to say, “Yes, we are being consistent. We have said this all along. We are not nudging Parliament to a change in policy. We are reaffirming where we stand.” That is the right decision to make. I am pleased to say that there has been genuine consensus in Parliament on the issue of Israel and the Occupied Palestinian Territories. I do not want to see that consensus being weakened, and I certainly do not want to see it being shattered. I fear that this legislation is the thin end of the wedge.
Bob Blackman
One concern that needs to be looked at is cause and effect. When there have been attempts to put pressure on companies that trade with the occupied territories, it is often Palestinians themselves who lose their livelihood as a direct result. One reason I think this is so important is that it is for the Government to decide this, not for individual public authorities.
The other issue that needs to be on the record is that the occupied territories have been the occupied territories for thousands of years. There has never been a state of Palestine. It has always been occupied by someone. We could go back to the days of the Israelites arriving from Egypt; we could go through the Roman occupation; we could go through the Ottoman empire; we could go through Jordan occupying it until ’67. The reality is that they have never had the ability to exercise authority over themselves. It is very important, when decisions are made on procurement, that we consider all the causes and the direct effects of a decision being made to disinvest from the occupied territories. We owe it to the Palestinians to safeguard their livelihoods and interests. That is one reason why clause 3(7) is so important: it protects them from unintended, although possibly well-meaning, consequences from particular public authorities.
Steve McCabe
I agree with my hon. Friend the Member for Caerphilly about all three paragraphs (a), (b) and (c) of clause 3(7). It is one of the more contentious parts of the Bill. I am not sure that I doubt the Government’s good intentions over it, but I doubt whether it will have the effect that the Government seek. If I can echo what the hon. Member for Harrow East suggested, for slightly different reasons, I also think it may have unintended consequences.
Kim Leadbeater
Regrettably, no Palestinian voices were called to give oral evidence to the Committee—I wish they had been—but a number of respected and representative organisations have submitted written evidence. If we take notice of only one objection that they raised, although that would be a mistake because they raised a number of really valuable points, it should be this: the Bill should not treat Israel, the Occupied Palestinian Territories and the occupied Golan Heights on an equal basis. The exclusion raises serious questions about the UK’s commitment to a just two-state solution and its alignment with established international law principles governing the status of the territories, which—as noted in international law, norms and consensus—are illegally occupied territories. We should take note of such serious concerns, which is why I support amendment 6.
Ordered, That the debate be now adjourned.—(Jacob Young.)
Economic Activity of Public Bodies (Overseas Matters) Bill (Fifth sitting)
Tuesday 12th September 2023
(8 months, 1 week ago)
Public Bill CommitteesRead Full debate Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 View all Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts 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.
The Chair
I remind the Committee that with this we are discussing amendment 6, in clause 3, page 3, line 11, leave out paragraphs (b) and (c).
This amendment removes the existing stipulation that the power to exempt a country or territory from section 1 may not be used in respect of the Occupied Palestinian Territories or the Occupied Golan Heights.
Chris Stephens (Glasgow South West) (SNP)
The amendments were tabled by the hon. Member for Caerphilly. We are discussing the part of the Bill that got the most comment on Second Reading. It had the most written submissions and witness statements, and considerable time was spent on this issue during the evidence sessions.
The hon. Member is trying to improve the Bill, which is a dog’s breakfast, so it is sometimes difficult to come up with the requisite amendments to try to sort it out. [Interruption.] If anybody wants to make an intervention, I am more than happy to take one. We are trying to amend the Bill so that it is acceptable to everyone. May I remind everyone that a number of Conservative Members were very exercised about this part of the Bill on Second Reading? We need to spend some time on this proposal to see whether we can come up with solutions, because there are real problems with clause 3(7) remaining in the Bill.
I remind Members of the exchange I had with the hon. Member for Caerphilly. It looks like we have a UK Government who want all public bodies to comply with their Foreign Office policy, but this area of the Bill appears to be in defiance of that policy. Why do I say that? Only a couple of days before Second Reading, Foreign Office Ministers made the position very clear during Foreign Office questions: they viewed the occupied territories as being illegal under international law. However, it is now being suggested in the Bill that a public body will not be able to disinvest from or boycott the occupied territories or the Golan Heights. There is a contradiction there, and the Government really need to look at that. It looks as though they are changing their Foreign Office policy through a piece of domestic legislation, and that is not the appropriate place to do it.
I sympathise with what the Trades Union Congress said about this issue: the Government are getting themselves into all sorts of difficulties. For example, they will be aware that the International Criminal Court has opened an investigation into the situation in Palestine, which covers crimes that are alleged to have been committed since 2014. Under their statute, the UK Government have obligations under that investigation, and there is a real concern that they are not acting consistently to uphold international law in this regard. There are real concerns that the situation, whereby Israel has occupied the Palestinian territories and the Syrian Golan Heights for more than 50 years, is in violation of international law and, significantly, numerous UN resolutions. The UN resolutions are important; a Foreign Office Minister referred to them prior to Second Reading.
I remind the Committee that in presenting the Second Reading, the Minister and the Secretary of State made their position clear. As is stated in the Hansard reports of those debates, they said that they thought the Bill would not impact on the UK Government’s position in relation to the occupied territories and the Golan Heights. But I am afraid that my reading of the situation, which is shared by many others, is that that is exactly what it does. I will support amendments 5 and 6.
Greg Smith (Buckingham) (Con)
I draw the Committee’s attention, as I did in the evidence sessions, to my entry in the Register of Members’ Financial Interests. I will not take up too much of the Committee’s time, but a point needs to be made on this important amendment and to be heard time and again. It relates to why Israel should be so significantly named, as apart from any other territory or country, in the Bill. For a start, Israel is a democracy in the middle east—a quite rare democracy in that region—the democratic values of which we need to seek to uphold.
More fundamentally, we should ask ourselves what the boycott, divestment and sanctions movement is. In the written and oral evidence given to the Committee, we heard clearly not that the movement is just a little bit against Israel—it does not just have some sort of mild disagreement with Israel or the Government of the day in Israel—but that the leaders of the BDS movement explicitly talk about wanting the destruction of the state of Israel. Israel is the target of the BDS movement. Its leaders have repeatedly rejected a two-state solution, which has broad agreement across all the political parties here in the United Kingdom and in many other democracies around the world. The co-founder of the Palestinian BDS National Committee explicitly goes further, and states his opposition to Israel’s right to exist as a state of the Jewish people.
That is why we need such explicit recognition in the Bill, which I hope will go on to become an Act. It will protect our allies in Israel and stop the malign forces in the BNC membership, which includes a coalition of Hamas, Palestinian Islamic Jihad and the Popular Front for the Liberation of Palestine—organisations that we in the United Kingdom proscribe. That is why I will vote against the amendments and seek to see the Bill pass through the Committee unamended.
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.
Chris Stephens
I beg to move amendment 18, in the schedule, page 13, line 5, at end insert—
“(2) Section 1 does not prevent regard to a consideration so far as the decision-maker reasonably considers it relevant to whether the decision (or anything done further to it) would give financial, economic, or other reward to a party that has engaged in breaching international law, where that breach of international law is directly related to the decision.”
The Chair
With this it will be convenient to discuss the following:
Amendment 14, in the schedule, page 15, line 29, at end insert—
“11 (1) Section 1 does not prevent regard to a consideration so far as it relates to genocide.
(2) That includes a consideration related to the possibility of genocide having taken place or taking place in the future.
(3) In this paragraph, ‘genocide’ has the same meaning as in the International Criminal Court Act 2001.”
This amendment adds genocide as an exemption to the application of section 1.
Amendment 19, in the schedule, page 15, line 29, at end insert—
“11 Section 1 does not prevent regard to a consideration so far as the decision-maker reasonably considers it relevant to whether the decision (or anything done further to it) would give financial, economic, or other reward to a party that has engaged in the crime of genocide as determined under international law, where that crime of genocide is directly related to the decision.”
Amendment 20, in the schedule, page 15, line 29, at end insert—
“11 Section 1 does not prevent regard to a consideration so far as the decision-maker reasonably considers it relevant to whether the decision (or anything done further to it) would give financial, economic, or other reward to a party that has engaged in the crime of ethnic cleansing as determined under international law, where that ethnic cleansing is directly related to the decision.”
Amendment 21, in the schedule, page 15, line 29, at end insert—
“11 Section 1 does not prevent regard to a consideration so far as the decision-maker reasonably considers it relevant to whether the decision (or anything done further to it) would give financial, economic, or other reward to a party that has engaged in the crime of apartheid as determined under international law, where that crime of apartheid is directly related to the decision.”
That the schedule be the schedule to the Bill.
Chris Stephens
I rise to speak to speak to amendments 18 to 21; we support amendment 14. The provisions of clause 1 are referred to in part 2 of the schedule under “International law” and consideration given to the possibility of the United Kingdom being
“in breach of its obligations under international law.”
The Bill’s constraints are therefore relaxed to deal with those circumstances. I hope that the Committee has a unanimous view that a person or body engaged in breaching international law should not gain any financial, economic or other reward from such breaches. Amendment 18 would embed that view into the Bill. That is why I and my hon. Friend the Member for Airdrie and Shotts tabled it.
Regarding genocide, my colleagues and I refer the Committee to a lengthy list of countries identified by the Foreign, Commonwealth and Development Office as human rights priority countries, several of which stand accused of genocide. The Bill would be improved by recognising that crime and the need for the international community, including the United Kingdom, to act against it when and where it has occurred. I therefore commend amendment 19 to the Committee. For broadly the same reasons, it is appropriate that we introduce amendments dealing with ethnic cleansing as well.
Regarding apartheid, I referred earlier in the debate to Scotland’s concerted fight against apartheid in South Africa. Sadly, that crime was not eradicated with the fall of that racist regime, and it has reappeared around the globe many times since then. I believe that the Conservative party was on the wrong side of history when it came to take a stand on apartheid South Africa; with this Bill, it appears to be choosing to continue that shameful legacy. We must learn from the past and make decisions for a better future. I therefore commend the amendments in my name, and in the name of my hon. Friend, to the Committee.
Wayne David
I rise to speak to speak to amendment 14. As we have heard, this Bill is not country or nation specific. It applies as much to Myanmar, North Korea and China as it does to Israel. The Government say there will be exemptions; Belarus and Russia have been mentioned, but unfortunately no others, and that is one of the profound weaknesses in the Bill. There are also other non-nation exemptions—financial and practical matters, bribery, competition law infringements, the environment and so on—but, crucially, there is no reference to genocide.
In June, 19 leading Uyghurs wrote a letter to The Times in which they expressed their serious concerns about the Bill. Last week, we heard evidence from the UK director of the World Uyghur Congress. In what I thought was a very moving session, the director told us that she strongly opposed the Bill and made it clear that it was not just her own view, but the view of the entire Uyghur community she represented.
There can be no doubt that the Uyghur minority in China are victims of grave and systematic human rights abuses. The Government have correctly described these abuses as “barbarism”. The UN has said that the crimes may well constitute crimes against humanity, and the US Administration have said that what we are seeing is genocide. Therefore, I sincerely hope that the Government accept the amendment, and in so doing demonstrate that they stand foursquare behind the Uyghur community.
The Chair
I have to say, Mr Blackman, that your timing is not that good today. We will take this as an intervention.
Bob Blackman
I have every sympathy with a view of taking action against nations that commit genocide, but the hon. Gentleman and I know that when we have tried to get the Government to classify certain human rights abuses as genocide, we get met with the legal definition of genocide. His amendment deals with just genocide, and not any other human rights abuses. Therefore, unless an international body classifies crimes against humanity as genocide, his amendment will have no effect whatsoever.
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 am afraid we are not convinced by the Minister’s reply, and we will push some amendments to a vote. The amendments themselves refer to international law. Indeed, the Labour party’s amendment 14 defines genocide as having the same meaning as described under the International Criminal Court Act 2001, so that should allay some of the fears voiced by Government Members. For completeness and tidiness, I will push amendments 18, 20 and 21 to a vote and I will yield amendment 19—
Steve McCabe (Birmingham, Selly Oak) (Lab)
I have an absolutely simple question. I do not know whether the hon. Member knows the answer, but I have been wondering about this. I do not think any of us here would object to the idea of having some genocide provision, and I am conscious that my colleagues have referred to the International Criminal Court. Does the hon. Member know whether the situation affecting the Uyghurs at the present time would be caught by that provision?
Chris Stephens
I cannot give my good friend a definitive answer to that, but it certainly should be looked at. We could argue that what is happening is also ethnic cleansing. As the hon. Member knows, I have reiterated this a number of times. I have Uyghur Muslim constituents and their situation is very difficult. I end up in tears when they tell me what is going on in China. I am in tears when they tell me that they are trying to get family members here so that they can have some sort of a family reunion. Certainly somebody should look at whether it is ethnic cleansing or genocide. I thank the hon. Member for his intervention.
I wish to push amendments 18, 20 and 21 to a vote, and I will yield to Labour colleagues if they wish to push amendment 14 to a vote.
Wayne David
Yes, we will be pushing amendment 14 to a vote. On the legal basis, we have expressed an opinion here, but of course the Government have constant legal advice during the passage of a Bill, and sometimes that legal advice is changed or modified in the light of representations and circumstances. I hope that that will happen here and that the Government will accept the need for definitions to be provided, provided we can unite around the objective of ensuring the word “genocide” is included.
Question put, That the amendment be made.
Ms Anum Qaisar (Airdrie and Shotts) (SNP)
I beg to move amendment 24, in clause 4, page 3, line 24, at end insert—
“(4) Nothing in this section requires any act or omission that conflicts with the rights and freedoms guaranteed under the Human Rights Act 1998.”
This amendment would ensure that any act or omission under the “gagging clause” in clause 4 would not conflict with the Human Rights Act 1998 (HRA), in particular, Article 10 (right to freedom of expression) and Article 9 (freedom of thought, conscience and religion) of the ECHR as incorporated by the HRA.
Ms Qaisar
Clause 4 is simply unworkable and not practical. During my contribution, I will outline the rationale for my amendment, but I wish to put on record that the SNP will not support the clause.
Amendment 24 inserts the proposed words to ensure that any act or omission under the clause would not conflict with the Human Rights Act 1998 and particularly with article 10 of the European convention on human rights, on freedom of expression, and article 9, on freedom of thought, conscience and religion, as incorporated by the HRA. Freedom of expression has long been seen as a cornerstone of democracy and the foundation for the rule of law. The ECHR gives political speech a high form of protection because of its crucial role in democracy. Any attempt to make it unlawful for public officials to be influenced by the political speech of others, or even to appear to have been so influenced, undermines freedom of expression. Public officials, in accordance with international law, have the qualified right to freedom of expression. That can be denied only under tightly prescribed conditions, which are not met in this legislation.
Amnesty International has outlined that the clause puts the UK at risk of breaking article 10 of the ECHR, which is protected under the Human Rights Act 1998. The Bill sets out a quasi-judicial review process and an enforcement regime that can be used to prevent or punish the making of statements. Both of those would amount to an interference with article 10 rights, in so far as they do not meet the necessity test. The ECHR considers that interference with the right to freedom of expression may entail a wide variety of measures, such as a formality, condition, restriction or penalty.
That raises the question of whether the proposed legislation’s interference with article 10 rights can be justified as being for a legitimate aim, which is defined in the ECHR as
“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.”
None of those aims appears to apply in this case. Although the Government state in their impact assessment that the Bill is intended to
“prevent divisive behaviour that undermines community cohesion”,
they provide no specific examples, stating:
“The number of actual or attempted boycotts or divestments inconsistent with UK foreign policy is relatively low”.
In that context, interference with free speech appears to be disproportionate, given the importance of this right.
Clause 4 has baffled me. I will present the Minister with a hypothetical scenario, and I would appreciate clarification of it, if she would indulge me. Let us say, for argument’s sake, that a company based in Xinjiang that is complicit in poor factory working conditions is line for a contract with the Scottish Government. Non-governmental organisations have raised human rights concerns and, unrelated to that, the Minister in charge of procurement is invited on to “Question Time” that night, where a member of the public asks about the company. In my understanding of the Bill—I would appreciate clarification on this—the Minister cannot say the company will not be awarded the contract because of its poor factory working conditions. That is because, under the Bill, Ministers cannot make decisions based on territories, and the Scottish Government Minister would not be allowed to say that their choice would have been not to award the contract to that Xinjiang-based company—they might want to say that, but they would be unable to do so because of the Economic Activity of Public Bodies (Overseas Matters) Act. However, the Minister could say that the contract would not be awarded to a company based in China because of general concerns about poor human rights records, not specific to Xinjiang.
Something else baffled me. That question was asked in a public forum, so let us say for argument’s sake that an MP and a councillor are also on the panel. My understanding is that, even if the Bill was clear that “decision maker” referred only to a public authority, its wider chilling effect is likely to engage article 10. That is because individuals who might influence the decision maker’s position would be heavily deterred from expressing views that could then be interpreted as influencing the decision maker based on political or moral disapproval.
Steve McCabe
I have to say that I agree with that last comment—I think clause 4 is unworkable, and it adds nothing to the Bill. It is a bit like clause 3(7). If anything, it undermines some of the intentions behind the Bill. Not surprisingly, it has been referred to as a gagging clause. It is virtually Kafkaesque, because it is coming a bit close to thought control. We are asked to accept that a person is not only prevented from doing something that contravenes clause 1 but that they are to be prevented from saying that, if it were perfectly legal to do so, they would want to do it. It would appear that they are not allowed to think that either. As I understand it, the Government say that the justification—this is an honourable aim—is that they are trying to protect community cohesion.
I ask hon. Members to pause for a second and work out how many people they know, and what institutions, would argue that community cohesion is being protected and safeguarded by these measures. The clause might prevent a person from saying that they intend to contravene clause 1 or that they would implement decisions that would, effectively, contravene clause 1 if it were legal to do, but it does not prevent them from saying a whole series of other abusive and offensive things about the state of Israel or anywhere else. In fact, it gives them a licence to say all those other things, and there is not a thing that can be done about it, provided they stay within the limits of existing law. I cannot see how this restriction is going to protect community cohesion. It is likely to have the opposite effect and to give those who do not share the Minister’s objectives on BDS a licence to look for ways to be abusive and offensive and still stay within the limits of the law.
I share the Minister’s desire to protect community cohesion and, as I have said, her overall objectives on the Bill, but I ask her to reflect on whether the proposals will really have the effect she seeks or whether it might be smarter to withdraw what is a pretty dysfunctional clause and go back to the drawing board to see whether there are more practical ways in which we could unite on protecting community cohesion.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to follow the passionate and high-quality contributions from the hon. Member for Airdrie and Shotts and my hon. Friend the Member for Birmingham, Selly Oak. I rise to address the issue of whether clause 4 should stand part of the Bill, because the Opposition believe that it should not. As we have heard, this is the so-called gagging clause, and colleagues will remember the significant discomfort about this provision on both sides of the House on Second Reading. It takes the Bill far beyond the existing consensus on combatting BDS actions that target specific states and into the realms of placing serious restrictions on freedom of expression.
Having listened carefully throughout our proceedings, I still cannot understand why the Government are so attached to clause 4. The road it takes us down is not helpful, and it will only muddy the waters in terms of what the Government seek to do. Let us be clear what clause 4 does. As we have heard from colleagues, it prohibits public bodies—yes, the entity but, in reality, the people who make it up—from making a statement that they would breach clause 1, were they able to, as a result of moral or political disapproval of a foreign state’s conduct. It is one thing to say that they cannot do it; now, they cannot even say that they would wish to—they cannot even talk about it.
We have heard the Minister’s qualification, and I will turn to it shortly. However, we must assess what is on the face of the Bill, which is a really bizarre limit on freedom of expression and contrary to the British values on which we pride ourselves. I know that there are Conservative colleagues who pride themselves on being free speech champions—indeed, it is a big part of what they do in this place and online—and I say to them that this may well be their moment to prove that.
I pay tribute to my right hon. Friend the Member for Barking (Dame Margaret Hodge), who spoke so powerfully on Second Reading about her experiences fighting the British National party and about why this clause cannot stand. She said:
“arguments are never won by suppressing democratic debate”.—[Official Report, 3 July 2023; Vol. 735, c. 615.]
I agree. That is a lesson that politicians on both the left and the right are still wrestling with—certainly in the online space—and need to learn.
There is also a wider problem. This is part of a broader range of efforts by the Government to curtail free expression—a legislative programme that has whittled away at the civic space over many years. That includes the Trade Union Act 2016, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, the Public Order Act 2023 and more. The Bill adds to those as yet another unacceptable fetter on free expression. There is consensus to make progress on the Bill, but clause 4 is a particular sticking point.
We have heard from the Minister, in the evidence sessions and today, some admirable attempts to clear this up. She has said that this is a very narrowly understood restriction and that individuals who may be a decision maker on one day can talk in a personal capacity on another, when they are not making the decisions. I think that fails on three fronts.
First, that is not what it says on the face of the Bill. Clause 4(1) states that a statement of intent to “contravene section 1”, were that permissible, is not allowed and, at line 15, the words “(in whatever terms)” are added. I cannot square “in whatever terms” with what the Minister has said. If someone was on a television programme, could they have a disclaimer and set aside the “in whatever terms” provision? I do not think those two things sit together, and I feel confident that an enforcement authority relying on judicial review for oversight would fall back on what is on the face of the Bill, rather than what we have heard.
Secondly, I would argue that a person who is a decision maker because they lead a local authority, is a cabinet member or is even, perhaps, a member of the council or a Mayor is always a decision maker. I do not think that they can just turn it off or on. I do not think that saying that is credible. I know that when people overreach in what they say on social media or in the media more generally, they might try to disassociate themselves from it in an attempt to shield their colleagues, but I do not think they get much shrift in that. Never mind when we get to the conflation where—we have current precedent—a leader of a council is a Member of Parliament. We also have recent and multiple examples, including one that lasted a significant period, where a Member of Parliament was also an elected Mayor. Are they fettered from talking about foreign policy in debates in this place? Can they take off those hats? I do not believe that they credibly can.
Finally, and this is the point made by my hon. Friend the Member for Birmingham, Selly Oak, we heard on Second Reading, and we have heard in Committee, that the purpose of the clause is to stop decision makers adding to or creating a situation where a community, particularly a minority one, is made unsafe. This is important, and the evidence from the Jewish Leadership Council and the Board of Deputies of British Jews brought that home. What the Minister has said in Committee, however, is that a decision maker could essentially say whatever they want, up to the point of advocating a boycott, and avoid that harm. As my hon. Friend says, it implies that a person can stand up and say anything they wish, in the most inflammatory terms, but that would not make people feel or be less safe. All that would do that would be the final phrase, “And I think we should boycott them.” I would say that the 200 words of inflammatory speech—of conspiracy theories and racist or hateful language—is where the harm is.
The clause does not add anything to the Bill, which leads us to our problem. We are being asked by the Government simultaneously to accept that the provision is broad enough to be impactful and to protect from harm, but narrow enough, as the Minister says, to apply in only a very small number of cases at a very small moment in time. I would say that those two things cannot be true together. The clause does not have to exist for the Bill to operate, which is why I believe we can safely vote against it without harming the overall goal.
Bob Blackman
Can I just put a contrary argument about the logic and flow of the Bill as planned? First, we have to look at clause 1. We are talking about individuals who are making decisions about placing contracts and buying goods and services from organisations that are affected by foreign policy. That is the first decision. Only the people in that position are affected in this way.
I am not a lawyer, either, but this is how I read the situation. A person cannot say, “I am going to break the law.” We cannot have an individual making a decision standing up and saying that. It clearly would be a contravention of the Bill and would be quite logical, and that is why we have clause 4(1)(a). If the person was to say, “If it were lawful to do so, I would act in this way,” that would create problems in community cohesion. We have seen that in what Leicester wanted to do, which is a prime example of what could happen if this clause is not included. From what I have heard, saying that this is about people in a representative democracy, whatever their guise, muddies the waters. The BDS movement focuses on Israel, the occupied territories and the Golan Heights, and it is targeting public authorities of all types.
Steve McCabe
The hon. Gentleman and I share a lot of common ground on various foreign affairs issues. I have been reflecting on what he is saying. He and I both take the view that the Islamic Revolutionary Guard Corps should be banned, and we would like to see the Government act urgently on that. In the absence of a ban, if we were to go one step further and think of other ways in which we might be able to impact on the IRGC, would it be outrageous to say, “If it were legal to do so, I would do this and this”? Why would that be a breach?
Bob Blackman
I could call the hon. Gentleman my hon. Friend because we co-operate on many issues. As representatives we can speak out and ask for a change in the law, but it is not right for us to lobby organisations, individuals and public bodies to break the law. That is what is covered in the clauses. With respect, I think the wording could be cleverer or better. I am one of those individuals who passionately believes in free speech. I passionately believe that people in a democracy and elsewhere should be allowed to say what they believe. I share the sentiments expressed on Second Reading by the right hon. Member for Barking (Dame Margaret Hodge), who has fought the British National party. Whenever we see extreme views with which we all disagree, we need to expose them in public and defeat them in an argument, rather than push them underground. My clear concern is that people could undermine community cohesion inadvertently. They probably would not mean to do so. There is no issue with making statements and having debates in councils, Parliament and the Scottish Parliament. The issue is one of breaching the law in terms of procurement, including of goods and services.
Chris Stephens
I thank the hon. Gentleman for giving way; he is being very generous. Does he not concede that there is a real problem with the language in clause 4(1)(b), which states
“that the person would intend to act in such a way were it lawful to do so”?
That is a rather baffling sentence, is it not?
Bob Blackman
I thank the hon. Gentleman, but that is what I have said. In due course, perhaps on Report, the language may need to be tidied up. However, the intention is clear. The decision maker should not be saying, “If I was able to do it, I would make this decision.” I do not think it helps the public body or decision making if primary legislation passed through this House says that that would be unlawful. That would not help community cohesion and it would not protect public bodies against being accused of making decisions based on particular views rather than on their coherent procurement needs. I will conclude with that.
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.
Ms Qaisar
The hon. Member says, “Hear, hear,” yet I imagine that he is about to vote for a clause that restricts free speech. I am somewhat perplexed.
This Government have passed legislation designed to protect academic freedom and have even appointed a supposed free speech tsar, yet the Bill seems to go against that. Clause 4 has the potential to shut down academic debate and limit academic freedom, which is integral to the higher education sector across all four nations. I am not convinced whatsoever by this clause. I will push amendment 24 to a vote, and I will vote against the clause in its entirety.
Question put, That the amendment be made.
Alex Norris
I beg to move amendment 8, in clause 6, page 4, line 28, at end insert—
“(3A) In relation to a decision or statement made by, or for the purposes of, a local authority, the enforcement authority is the Office for Local Government.”
This amendment changes the enforcement authority for local authorities from the Secretary of State or Treasury to the Office for Local Government.
The Chair
With this it will be convenient to discuss the following:
Amendment 9, in clause 6, page 4, line 38, leave out subsection (6).
This amendment removes the provision allow the Secretary of State or Minister for the Cabinet Office to amend this section so as to change the enforcement authority in relation to a particular description of decision or statement.
Clause stand part.
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.)