Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Lord Browne of Ladyton and Lord Evans of Rainow

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I feel proud, honoured and thankful to have been present in your Lordships’ Chamber to hear the powerful and informed speeches from my noble friends Lord Boateng and Lord Hain, and the powerful and forensic speeches from my noble friends Lady Chapman of Darlington and Lord Wood of Anfield.

I intend to devote my limited time to drawing your Lordships’ attention to a few specific provisions in the Bill and arguments about them, in opposition to it. I start by drawing your Lordships’ attention to remarks that were made at the Second Reading of the Bill in the other place. In rebutting the critics of the Bill, Michael Gove suggested—and this was deliberately calculated—that the central question for every Member of that Chamber was

“whether they stand with us against antisemitism or not”.—[Official Report, Commons, 3/7/23; col. 591.]

This is not merely a false dichotomy but an extremely irresponsible piece of rhetorical manoeuvring. I am not surprised by it. By implication, it condemns opponents or even critical friends of the Bill as anti-Semitic. It seems ironic, to say the least, that in moving legislation purportedly designed to ease community and cultural divisions in this country, the Secretary of State chose to frame the debate in such inflammatory terms. For my part, I know not only that every Member of your Lordships’ House abhors anti-Semitism but that we are all conscious of the very specific and insidious ways in which it can creep into public discourse. We will do everything that we can to prevent that.

We were also told during those proceedings—I am grateful to the noble Lord, Lord Willetts, for drawing our attention to this—that the Bill fulfils a 2019 manifesto commitment. Leaving aside the question of how far the writ of that manifesto can seriously be expected to extend, given that it was the product of neither this Prime Minister nor his immediate predecessor, it is worth looking at, as was encouraged by the noble Lord, Lord Willetts, how that commitment was framed and to what extent the Bill we are considering today reflects it.

The noble Lord read out the relevant passages, so I will not repeat them, but there are a number of aspects that are interesting in relation to the Bill. For example, there is no manifesto commitment to legislation that singles out protection of Israel and the Occupied Palestinian Territories. This is anomalous for three reasons. First, I fear that singling out Israel and the OPT in such a way is counterproductive. If I seriously believed that the actions of local authorities or other public bodies were compromising the coherence of British foreign policy—and sometimes I beg for the coherence of British foreign policy—I would have greater sympathy for this Bill.

With this in mind, I would be grateful if the Minister, whom I respect immensely, and she knows this, would outline a few cases that support that contention—where international perceptions of our foreign policy have been distorted or compromised, or where local authorities or other public bodies have acted in a way that courts serious confusion at an international level because of behaviour that is identified in the Bill. There must be data to support legislation that has such implications for the way in which we live. We have to justify the sweeping powers contained in the Bill, and this data must be shown to us before the conclusion of our deliberations on it.

Secondly, the more extreme elements of the BDS movement argue that Israel is too often held unjustifiably exempt from criticism and that the actions of the Israeli Government do not receive appropriate scrutiny. Surely by naming only Israel and the Occupied Palestinian Territories in the Bill we will not defang those who make such criticisms but give them further ammunition for such assertions. This is of particular importance to Clauses 1 and 4.

Clause 1 prohibits action that a “reasonable observer” would conclude is motivated by “political or moral disapproval” of a foreign Government. It strikes me that the words “reasonable observer” are doing a great deal of heavy lifting here and that we are merely opening ourselves up to legal challenges based on contending subjectivities. Given the historical complexity, emotional depth and diplomatic ambiguity that attend any discussion of Israel, Palestine and their relationship, who is to decide what constitutes the position of a disinterested, reasonable observer? The last couple of years have shown me that, on this issue, in this country, there is no such thing.

Of even greater concern is Clause 4. As we have heard from other noble Lords, this provision does not merely debar a public body from expressing its intention to act in a contrary manner to this Bill but in addition—God forbid—prevents them expressing how they might wish to have acted were the legislation not in force. I should be grateful if the Minister would be kind enough to present even a hypothetical case for where this provision may prevent serious harm to the coherence of UK foreign policy. In asking that, I do not contend that we have not seen cases where councils have made declarations supporting anti-Israel boycotts that they had no intention of implementing but that were none the less opposed by local Jewish groups. But I do not believe that these cases, however regrettable and ill-conceived, justify such sweeping measures to curtail free speech, nor that they in any serious manner compromise the wider unity and coherence of our foreign policy. It must be pretty fragile if they do.

A final anomaly to mention is a further consequence of Clause 4. In what circumstances is a decision-maker, or one who may influence a decision-maker, under the terms of this Bill speaking in a private capacity or as part of a public body? If the leader of a council spoke in the council chamber expressing their disapproval of Israeli actions but prefaced these remarks with an acknowledgement that such views were privately held and siloed from decision-making, would this exempt them from these provisions? Answering in the other place, the Minister sought to square this circle by saying that

“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”.—[Official Report, Commons, Economic Activity of Public Bodies (Overseas Matters) Bill Committee, 12/9/23; cols. 155-56.]

While that clarification was no doubt tremendously insightful, I am sceptical that such a simplistic definition would survive contact with reality, never mind the courts. For these reasons, I believe that Clause 4 should simply be removed from the Bill.

Talking about contact with reality, noble Lords heard, in the opening sentences of his introducing the Safety of Rwanda (Asylum and Immigration) Bill, the noble and learned Lord, Lord Stewart of Dirleton, or the Advocate-General for Scotland, say:

“I am speaking to the House today as a member of the Government for the Bill, not in my formal law officer capacity”.—[Official Report, 29/1/24; col. 1003]


The man is only in the Government because he is a law officer. The Advocate-General for Scotland position had to be filled, and he came from the Scottish Bar to fill it. He is only in the Government as a law officer. If noble Lords want to see the degree to which that survived reality, they can look at the rest of the debate and at how confused everybody in this House was by those remarks from the noble and learned Lord as to who he was talking for.

This Bill may be well-intentioned—I am sceptical about that—but it contains sufficient ambiguities and contradictions to risk deepening existing fractures and creating new contentions in relation to freedom of speech. For those reasons I will be seeking, at the very least, to support critical amendments as it moves through your Lordships’ House.

[Lord Evans of Rainow (Con)]

My Lords, this has been a wonderful debate, but the advisory speaking time is seven minutes. I am looking forward to seeing all noble Lords again in Committee, so please try to keep to seven minutes. Some of your Lordships were up at midnight, so we are hoping for a reasonable finish.