Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Baroness Altmann and Lord Etherton

Committee stage
Tuesday 7th May 2024 Lords Chamber

[Lord Etherton (CB)]

I support Amendments 18 and 29, tabled by the noble Lord, Lord Verdirame, to which I have added my name. In view of what has been said in detail by the noble Lord, Lord Verdirame, and the noble Baroness, Lady Noakes, I can be very short.

Put very simply, the international law exception in the Schedule, as currently worded, leaves entirely to the relevant public body the right to reach its own conclusion as to whether a failure to boycott or a positive decision to make a procurement in relation to the foreign state would place the UK in breach of its obligations under international law. This is contrary to the Government’s own policy in paragraph 6 of the Explanatory Notes that the obligations under international law relevant to a BDS decision must be determined by the Government and not by individual relevant bodies. As we all know, many aspects of international law derived from numerous sources can be highly contentious. One has only to think of disagreements expressed in this House over the past few years on the proper meaning and effect of the refugee convention and the European Convention on Human Rights to see that that is so.

Paragraph 6 of the Explanatory Notes states that decisions of public policy about procurement and investment based on political or moral disapproval of a foreign state are permitted only if the decision is,

“positively consistent with the UK’s foreign policy”—

I emphasise—

“as determined by the Government”.

The Minister, in response to me on Second Reading, was not entirely consistent in relation to this matter. She said:

“This exception is necessary to ensure that public authorities are not forced to make a decision which could put the UK in breach of its obligations under international law. Public authorities cannot have their own subjective views on what constitutes a breach of international law”—


which is fair enough. She continued:

“They must reasonably consider the decision relevant to the UK’s obligations under international law”.—[Official Report, 20/2/24; col. 595.]


Therefore, there is an insertion there of “reasonable consideration” but no reference at all to the Government’s policy stated in the Explanatory Notes that foreign policy is to be determined by the Government and not by individual public entities.

In short, we simply cannot have disputes before our domestic courts about the proper meaning and effect of international law sources relevant to decisions under the Bill going through the High Court, the Court of Appeal and the Supreme Court at great cost to the public as well as, of course, to the ratepayers and the council tax payers of the relevant body.

[Baroness Altmann (Con)]

My Lords, I will briefly support the two amendments, one from the noble Lord, Lord Verdirame, and the noble and learned Lord, Lord Etherton, and the other from my noble friend Lady Noakes and the noble Lord, Lord Pannick. I urge my noble friend the Minister to consider carefully the purpose of these amendments.

I completely support the Bill and I am grateful to the Government for bringing it forward, although I recognise that not all noble Lords will be of the same mind as myself. However, I stress that using a test such as that proposed in paragraph 6 of the Schedule, as to whether the decision would place the UK in breach of its obligations under international law, is problematic.