Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I wish to speak on only one issue, one that the noble Baroness who preceded me has just dealt with: the way the Bill works with devolution. It is important to understand the context. The Bill is so widely drawn that it deals with decisions or views that express disapproval of foreign state conduct. It is all justified on the basis of foreign policy, but it is very important to distinguish between the wide terms of the Bill and the much narrower interests of British foreign policy. That is important for two reasons, to which I shall come.

It seems clear from the Bill and the various devolution statutes that the Bill affects powers that have been devolved to the national Parliaments and Governments. I thought this was not in dispute to a large extent, because pages 13 and 14 of the Explanatory Notes, first, tick boxes that say that legislative consent would be sought and, secondly, seem to accept that, at least as regards the executive powers of Ministers, devolution powers are engaged. I very much hope that the Government have not changed their position on that and that they will not proceed with this legislation without obtaining legislative consent. There have been far too many instances where this Government have overridden the devolution settlements, and it is not in the interests of the unity of the United Kingdom that this is continued.

As I understand it, it is claimed that much of the Bill does not involve devolved competences because the general reservations in most of the devolution settlements expressly reserve international relations, the regulation of international trade, and international development assistance and co-operation, although there are qualifications to that. In a Second Reading debate, I do not want to go into the finer and more detailed and difficult legal points in relation to the devolved settlements, and I am sure that the Minister, in replying at a late hour this evening, will not want to deal with that.

I return to what I regard as a central point. As I understand it, the Bill’s wording is intended to prevent the devolved Governments adopting a procurement policy based on their disapproval of the policies or conduct of any state. That is extremely wide. It is not confined to conduct that is in conflict with the foreign policy of the United Kingdom. One can understand why relations with foreign policy are reserved and departures from UK foreign policy might be justified as a reservation, but, given the wide scope, this is very difficult.

Secondly, as the noble and learned Lord, Lord Etherton, has shown, the exceptions in Schedule 2 are extremely imprecisely drawn. I agree completely with what he said about international relations. If you look at the one in relation to environmental conduct, you can see that it is even wider as it applies to something that may be an offence under the laws of any state. These points are important because of Clause 5, which permits judicial review. If there was no judicial review in it, one could expect the good sense of government not to intervene—but, once you open up judicial review, you are vulnerable to people who want to use it in this sort of policy area for commercial or political advantage. So the exact precision of this Bill is of great importance for that reason.

I have one question for the Minister, which I hope that she will be able to answer, but—bearing in mind what I see as very serious flaws in this Bill—there is another question. If, for example, the Bill when an Act is to work properly, how will we deal between national Governments and with local authorities in determining what they can do that is consistent with British foreign policy and with what is, on any reading, disapproval of the conduct of a foreign state? Is a blanket prohibition to apply, or will there be some mechanism? It is extremely unclear from the Bill how in practice this will work, particularly in the light of the availability of judicial review for persons who wish to cause mischief to bring proceedings.

There should be a forum for intergovernmental discussion of these issues, and I very much hope that the Minister will be able to deal with this dichotomy between the interests of foreign policy and the blanket prohibition and a sensible procurement policy, whereby the devolved Governments and others can use their procurement and other powers in a wide compass without fear of litigation.