Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Baroness Noakes and Lord Leigh of Hurley

Tuesday 7th May 2024 Lords Chamber

[Baroness Noakes (Con)]

My Lords, my noble friend Lord Willetts and others have queried whether there is any evidence of a problem. It may be true that there is not much evidence of actual BDS activities by universities to date, but it is certainly true that there is a problem of anti-Semitism on campuses. It may also be true, as the noble Lord, Lord Mann, said, that it is less acute than in the United States—most things are less acute here than in the United States—but I do not think that means we should ignore it. It is clear that the accelerating protests on campuses are having a deleterious effect on Jewish students on campuses. Indeed, the Union of Jewish Students said only last week:

“Jewish students are angry, they are tired, and they are hurt by the continuous torrent of antisemitic hatred on campus since October 7th”.


I am not sure that gives the Union of Jewish Students a veto on whether the Bill should go through, but it indicates that there is still a very real problem.

The current round of student protests—the encampments and related demands—do seem, as I have seen reported, to include BDS demands on the universities. As far as I am aware, none of the universities has yet succumbed and changed its policies on BDS, but at least one has given in to some other demands, such as renaming buildings and changing some other organisational arrangements, and we cannot be sure what universities will do in the longer run. The Bill would close the option of them ever implementing BDS policies and would therefore be one small step to closing that route off and helping to create an environment for Jewish students, who would be even more oppressed if the universities publicly announced BDS policies against them. I do not think it is a very big item, but I do not agree with the noble Lord, Lord Mann, that the Bill does nothing. I think it does something towards closing off an avenue that universities might be tempted to go down in order to see off the undoubted nuisance of all these student protests.

I would just like to briefly say something about the ONS as well. The ONS reviews all sets of bodies that are on the borderline between the public and private sectors at regular intervals, and it does it in a careful way in accordance with international definitions. These are all careful considerations. It is clear that universities are in a grey area: they are public authorities for the Human Rights Act, are included in the Freedom of Information Act and were included in the Procurement Act that we considered last year. They are already subject to a lot of the public sector laws, and nothing is going to change that. I agree with my noble friend Lord Willetts that this Bill will not be the straw that breaks the camel’s back, but it is always legitimate to ask on which side of the line these bodies that exist half in and half out fall.

Just being classified by the ONS does not of itself lead to other consequences. There may well be further considerations down the line, but we certainly cannot stop the ONS doing the job that it is set up to do, which is to consider classifications in accordance with international guidelines,

[Lord Leigh of Hurley (Con)]

My Lords, it seems to me to be fundamental to this Bill that universities and other relevant bodies are included. We are not talking about individual academics having their right to free speech being affected at all. We are talking about institutional behaviour. Yes, as the noble Lord, Lord Willetts, has pointed out, what happens in universities really matters. I also went on a trade trip to China with the vice-chancellors. I remember, because they were the ones sitting in business class. They are a very important part of the fabric of our society—

Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Baroness Noakes and Lord Leigh of Hurley

Committee stage
Wednesday 20th March 2024 Lords Chamber

[Lord Leigh of Hurley (Con)]

My Lords, I apologise for my not being able to speak at Second Reading, although if I had, I would have agreed with my noble friend Lord Wolfson on much of what he had to say. I also apologise for slightly jumping the gun on the noble Lord, Lord Verdirame, particularly as what he said was so interesting and informative.

I just wanted to question Amendment 1. If one is seeking clarity and certainty, introducing the idea of having a

“primary or sole factor in the decision”

seems extremely difficult to prove, whereas showing that the decision was “influenced” is much easier and, as I understand it, a recognised legal term.

[Baroness Noakes (Con)]

My Lords, I have problems with all the amendments in this group. Amendment 1 in the name of the noble Lord, Lord Wallace of Saltaire, would elevate “political or moral disapproval” to be the sole or main factor, and the noble Lord, Lord Palmer of Childs Hill, wants to introduce the concept of materiality into influence. Both these would just create huge loopholes, which would allow public bodies to conceal their boycott activities within other factors. Clever lawyers would find ways of writing papers which support decision-making in, say, local authorities or other bodies affected by the Bill, by reference to a whole load of other factors, to support the claim that they were not “materially” influenced by their disapproval of a foreign state, or that it was not the sole or main factor. I genuinely have a problem with the watering-down implied by Amendments 1 and 2.

I listened very carefully to what the noble Lord, Lord Verdirame, said about his amendments. I understand that he is trying to find a way through by removing the reference to “political or moral disapproval”, but I am not convinced that his amendments work either. In particular, I am not sure what the restriction to “that territory” in his Amendment 4 will do. Let us suppose that the territorial consideration is Ukraine, because it has to relate to a particular foreign territory by virtue of subsection (3). Does that mean that the decision-maker must have no regard to what is happening in Ukraine itself? It seems to me that “that territory” can be related only to the territorial consideration referenced in subsection (2). In that case, it would be Ukraine. If, say, Russia is the foreign state you have a problem with, it seems that you can take account of its activities only in Ukraine. You could not take account of activities that were not in Ukraine—for example, attacks from other places, such as the Black Sea, or whether it takes children from Ukraine back to Russia. If you thought that Russia was the territory—still restricting it to one territory—you have the problem the other way around; you could take activities only in Russia, but not in Ukraine, which is the fundamental problem. That creates an interpretive problem.

While these distinctions might not matter if we are talking about Russia and Ukraine, if you try and then relate it to a council or other public body trying to boycott Israel, and relate that to the complexities of the different parts of the territory around the State of Israel, you may end up finding some odd conclusions on how the reformulation might work in practice. I am aware that the noble Lord, Lord Verdirame, is a very clever lawyer and I am not, and I may well have completely misunderstood how his amendment is intended to work.

National Security and Investment Bill

Debate between Baroness Noakes and Lord Leigh of Hurley

Committee stage & Lords Hansard
Tuesday 2nd March 2021 Grand Committee

[Baroness Noakes (Con)]

My Lords, the voiding of a commercial transaction that has already taken place is a massive penalty for those who have entered into the transaction. Parliament should be very wary of legislating in this way if it is not absolutely necessary. I believe that, as drafted, the Bill goes beyond what is necessary.

A transaction may not have been notified where the parties to it did not believe that they were covered by the legislation, perhaps relying on a misinterpretation of the statement that will come out under Clause 3 or perhaps a misunderstanding of advice received from the investment security unit about the transaction. These could occur in situations of good faith, yet the Act is capable of inflicting the penalty of voiding the transaction even in such an instance.

I do not doubt that voiding a transaction may well be the right result if the transaction really does engage national security, but even then it is not necessarily the case that every transaction should be voided. We have to understand that Clause 13 is one of the parts of the Bill that will drive unnecessary voluntary notification, which I know that the Government will wish to avoid. The amendments in this group are helpful and proportionate and I hope that the Government can accept one of the formulations.

[Lord Leigh of Hurley (Con)]

My Lords, we have heard from a chartered accountant, a banker and a lawyer all in unanimity; it is very worrying. As I understand it, this approach is consistent with some regimes in certain countries. The idea of having a transaction fully voided would lead to many innocent third parties being in limbo. Would it not be better that a transaction or certain parts of it were voidable, as some parts of the transaction may not be in any way relevant to national security. That gives HM Government more flexibility. By being voidable, it allows for negotiation, discussion and parts perhaps to be voided and not the whole thing.

Once again, insisting that the transaction could be voided in legislation will simply deter overseas investors and buyers because it is a huge amount of uncertainty to have such a black and white separation. The amendments still allow for the dictum of the noble Lord, Lord Callanan, in respect of Clause 15 of non-notified acquisitions being able to be retrospectively validated rather than retrospectively invalidated. Giving the Government maximum flexibility seems a wise and good thing to seek.