Economic Activity of Public Bodies (Overseas Matters) Bill (Second sitting)

Alex Norris Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[The Chair]

Just a reminder that this panel is due to conclude at 2.30 pm and I have three more Members who have indicated that they wish to contribute. If anyone wishes to contribute, please waggle your fingers at me. Do you want to add anything further, Dr Harris?

Dr Harris: Briefly, I agree with Dr Mendoza. The justification here should be the limitation of vires—of the powers—of these bodies. That is the way to justify clause 1 for me. The justification is not, “Get behind Government policy” or “Do not make these moral or political statements”: it is vires and powers. We can come back to that in further questions.

[Alex Norris (Nottingham North) (Lab/Co-op)]

I have just one question, about clause 7, which governs the information notices—the mechanism by which the Government can compel information from public bodies to find out if they have made, or are about to make, a decision that would contravene clause 1. In clause 7(8), those notices override any obligation of confidence, so if it is a conversation between someone and their lawyer, the Government can compel that information. That seems to me to be a very strong power. What is your opinion?

Dr Harris: My reading of that, on its face, is that it would be something like the whistleblowing protection, whereby a whistleblower is exempted from duties of confidence to their employer. Without more, it would strike me as extremely unlikely that this would override the privilege between a lawyer and client.

[Alex Norris]

Even though it says “any obligation” on the face of the Bill?

Dr Harris: Yes.

Dr Mendoza: I have a slightly different response. I am slightly perplexed by the question. What were you thinking that was so secretive and furtive in nature that would even require a lawyer/client confidentiality level? We are talking about a simple foreign policy discussion, not about someone’s secret actions.

[Alex Norris]

Q What I would say is that you would know, as a local authority councillor, that local authorities routinely take legal advice about their actions, certainly if they thought they might be an edge case in such legislation. On a fair reading—I would be delighted if I were wrong—this would permit the extraction of such information, which we would normally consider privileged, by dint of a Government information notice, and I wondered if you felt that was proportionate.

Dr Harris: It is important to note that it does not say that the enforcer can demand information that is confidential. All that happens is that the person disclosing will not be liable if they breach a right of confidence. It is not a right to extract the information, or a power of the Government; it is simply a freeing from liability of the discloser.

Dr Mendoza: I would agree with that reading. It says:

“A person providing information in compliance”,

so I think that is the correct reading of that clause.

Dr Harris: There is one, perhaps related, problem for me. Clause 4 states:

“A person who is subject to section 1 must not publish a statement”,

and that can include statements of intent or hypothetical intent. Consider, for instance, a university governing body—senate or council—making a decision about divestment. Let us say that there is a meeting, there are minutes and they are kicking ideas around. They may well benefit from a degree of those deliberations not being public.

The problem I have is that my understanding is that an FOI disclosure would constitute publication. If you look at section 79 of FOIA, it is explicitly called “publication”. This body would be in a position whereby it would say, “Well, we have to comply with FOIA, because we have to disclose, and if we do disclose, we may be breaching the law by publishing a statement whereby we say that we intend to act in a certain way.” It is a drafting point, I think, but that needs to be cleared up. We do not want over-defensiveness in these deliberations by public authorities.

Dr Mendoza: I agree. That is an interesting technicality that probably should be taken note of by the Committee.

[Chris Stephens (Glasgow South West) (SNP)]

Q I have a question for you, Dr Mendoza, and then a separate question for Dr Harris. The Henry Jackson Society, the organisation that you represent, is described as being

“focused primarily on supporting global democracy in the face of threats from China and Russia”.

Does your organisation in any way support divestment in China, particularly regarding the treatment of Uyghur Muslims?

Dr Mendoza: I would say, on that point, absolutely. The position that we adopt with China is very simple. I believe that you have a witness who will be able to tell you about the experiences of her family, her relatives and, indeed, her people in what are effectively modern-day concentration camps, to the point that many among us believe that the Chinese Government are practising genocide against this particular group in Xinjiang. If we look at what is actually happening there—the eradication of their culture, the imprisonment of people for forced labour and that sort of activity—on that basis, we are essentially talking about modern-day slavery. You will be aware that the Bill will be superseded by modern slavery actions and the UK’s sanctions regime on this. Yes, we do believe that there ought to be accountability from the Chinese Government on this score, and I personally would not be buying things from Xinjiang province.

--- Later in debate ---

[Ms Qaisar]

Q Is that a concern that you have? Richard Hermer KC has raised concerns that UK courts would potentially have to rule on the legality of Israeli settlements in the Palestinian territories.

Stephen Cragg: Yes, because there are competing views on that. If there are competing views, local authorities might want to seek a view from the courts on whether their view is correct. It is then all up for grabs in the High Court and beyond after that—something that the courts have tried to avoid getting embroiled in.

[Alex Norris]

Q You mentioned the use of regulations for setting the fining regime. That is a common theme of this Bill. It also allows the Secretary of State to vary the schedule that sets out the important exceptions to the Bill and to vary enforcement authorities. That is a theme of the Bill. Do you think that those things and that degree of reserved power for the Secretary of State should be on the face of the Bill, or are they proportionate and necessary for the effectiveness of the Bill?

Stephen Cragg: What the Bill does is give very wide powers to the Secretary of State to change lots of aspects of this—which countries are involved, which conditions and the like. The concern when you have secondary legislation powers is always, “All right, this Government might not use them in a way that you would not agree with, but Governments down the line may use the powers they have here to mould a system where countries that they agree with are excluded under the Bill, and countries and issues that they do not agree with are the ones that things will be focused on.” There is always a concern about that. In something as important as this, it seems to me that that should be on the face of the Bill; it would give me a lot more reassurance as a lawyer if it were on the face of the Bill.

[Alex Norris]

Q Secondly, to finish the points you made in a fulsome way on clause 7, for my own clarity. You are saying that you would have greater confidence in the provisions in clause 7 if it was on the face of the Bill that privileged information between clients and their legal representation was exempted from that information-gathering power?

Stephen Cragg: Yes. I read out the terms of clause 7(8) and it seems to say that there is no restriction on the information which can be requested, as far as I can see. If that is not the Government’s intention, it is simple to put that right.

[The Chair]

Thank you very much. If there are no further questions from Members, I thank the witness and we will move on to the next panel.

Examination of Witnesses

Francis Hoar, Professor Andrew Tettenborn and Professor Adam Tomkins gave evidence.

--- Later in debate ---

[Felicity Buchan]

Q Do you not think it is needed for community cohesion? These statements can be very inflammatory.

Francis Hoar: Yes, of course they can, but as Professor Tettenborn said, that does not stop councillors making them on the campaign stump, and it does not stop the Mayor making them in a personal capacity. I am afraid I do not find that a convincing argument at all.

[Alex Norris]

Q I want to follow that point through, with all three panellists, if possible. You have all indicated support for the Bill in generality, and in particular for what clause 1 tries to achieve. Do you think you have to have clause 4 for the Bill to be effective?

Francis Hoar: I have answered that.

[Alex Norris]

Yes, I think you have addressed that point, but what about the two professors?

Professor Tettenborn: I must admit that I am a little more friendly to clause 4. I will tell you why. It comes out in the old saying that a nod is as good as a wink to a blind horse. Sorry, that was a bit flippant, but if you have a statement by a large number of councillors, “We really don’t like it. We’re not saying that we might disinvest from it, and we’re not saying that this is going to influence what we do, but you realise what our views are,” that is going to come across to a lot of other people as being very much the same thing. I gather that that was what this particular clause was getting at. I confess that I am a little less happy about conditional statements, but if a person says, “We would like to do it—okay, it’s illegal, but we would like to do it—but we are not saying we are going to do it,” I think there is a strong case for saying that they should not say that.

One always has to remember that, as Professor Tomkins pointed out, this is not something that criminalises a statement. Basically, something can only happen to you when you make a statement once you have been warned—once you have received a notice: “Oi, don’t say that again.” Now, you might want to challenge the notice or whatever, but that is a relevant feature of the legislation. It is a feature that I find attractive, as against the rather fierce legislation that they have in quite a lot of American states.

[Alex Norris]

Q Professor Tomkins, could you address that point?

Professor Tomkins: I will make two quick points about clause 4, if I may. First, in my career I suppose I have worn two hats: one as an academic lawyer and the second as a practising politician. What you have heard from the other two witnesses on this panel are legal responses to clause 4, and there is nothing wrong with that at all—I do not mean that as anything other than a compliment—but perhaps a political response to it would be to remind this room of politicians that, in these matters, it is not just what happens that matters: it is also about the optics of what happens, particularly with regard to the undermining of community cohesion.

The Jewish community in Scotland—which happens to be a community that I know rather well, for personal reasons—is a very small community. It is a community that is very easily frightened, not necessarily by things that are done, but by things that are said. If we are serious about protecting community cohesion, and I think the Government are serious about that, and they are right to be, and if we are also serious about maintaining the integrity of British foreign policy, we need to be careful about what is said by people in their official capacities—not as private citizens but in their official capacities. For those reasons I am much more enthusiastic about clause 4 than most of your other witnesses have been.

With my legal hat on, I am certain that there is not an article 10 problem here, because clause 4 is targeted at speech that is uttered only by officials in their official capacity and, moreover, is targeted only at a very narrow range of potential statements, which are statements with regard to procurement decisions and/or investment decisions, rather than, as we heard in earlier sessions, statements that are in their generality critical of Israeli policy or, indeed, of British policy with regard to the middle east. For all those reasons, there is not a legal problem with regard to clause 4, but there is a political imperative behind clause 4, and if I had a vote on the matter, which I do not, I would vote for it enthusiastically.

[Alex Norris]

Q On multiple occasions on the face of the Bill, the Secretary of State has reserved powers to change provisions in the Bill by regulations. Do you think that approach has been used too liberally? Has it been used appropriately? Are you comfortable with that degree of ability for the Secretary of State to vary things later down the line?

Professor Tomkins: I think I am. It is always a delicate balance between what goes into primary legislation—what goes on the face of the Bill, as we say—and what can be done after an enactment by Secretaries of State or Ministers, using the various powers that are crafted by the Bill. The balance that has been struck in the Bill is appropriate and reasonable—yes, I think it is.

Francis Hoar: I think it goes too far in some respects. Generally speaking, Parliament has been too ready—this goes back over many decades and is certainly not just the case under this Government and in this Parliament—to give the Government powers to give devolved legislation, particularly with Henry VIII powers, which the Government accepts there are in this case. I think Mr Cragg KC mentioned the unlimited power of the Minister to order the maximum financial penalty, and there is good reason for the House of Commons to restrict that to a particular maximum.

The particular concern I had was that although, wisely, the Bill does require advance scrutiny of the regulations, there is an exception in clause 3(2) and (5). The Government have given a good explanation as to why they may wish to add a country or territory to the list—the approved list or the disapproved list, whichever way you want to look at it—because, of course, Russia might invade Ukraine, and that is an obvious example. But they have not provided any explanation—certainly not a credible explanation—as to why we need clause 3(2), which includes adding, removing or amending a description of a type of consideration that can be taken into account by a local authority. There is absolutely no reason why that would ever be so urgent as to be needed without the advance scrutiny of the House of Commons. So clause 3(2), in my view, should not have an emergency provision. In clause 3(5), there is a very good reason for that; if the Bill is passed, one accepts the principle, and if one accepts the principle, these things should be able to happen.

Professor Tettenborn: I am entirely with Francis on that one. Certainly, the power to add countries actually is, again, quite skilfully guarded. I think people around this table will have noticed that it is subject to affirmative resolution—that is, it cannot pass merely by everybody not noticing when it is placed on the Table and not objecting to it; it cannot pass by inertia. I think that is a very sound part of the Bill indeed.

[Ms Qaisar]

Q Thank you to the panel for joining us today. I want to stick to clause 4, because I was really interested in the discussions on it. Some stakeholders have called it a gagging clause. I am really interested to learn what other options the Government could bring forward to achieve the clause’s aims. It is my understanding that if a Scottish Government Minister, for example, wanted to speak out against it, they would be unable to do so. They would have to turn around and say, “I’m not speaking on behalf of the Scottish Government, I’m speaking as an individual,” even if they were stood in the Scottish Parliament.

Francis Hoar: I have answered this fairly fully, but I think that that encapsulates why I am not convinced about clause 4, although I agree with both my colleagues on the panel that it is not likely to be disproportionate, because it falls within the earlier Strasbourg/French authority. These are public bodies, and there is a good reason why it would be proportionate to restrict them, but you have encapsulated why the provision is pretty useless: because all the Minister needs to say is, “I’m not going to speak on behalf of the Scottish Government.”

Now, I can absolutely see the logical reason why it is a good prohibition, because it is right, on the view of the Bill on this panel—although not among all your other witnesses—which is that the general objective is a sound objective. If that is right, it is fair enough to prevent Ministers in Scotland or Wales from making those sorts of pronouncements. But, in reality, what is it going to do? It is just going to mean that, basically, I will say that I am going to speak in a personal capacity.

Incidentally, on the drafting of the Bill, I am not entirely clear—I agree, again, with Mr Cragg on this—as to the relationship between clauses 4 and 1. Purely from a drafting point of view, that needs to be made clear. If the Government are suggesting that that should not apply to an individual speaking in an individual capacity, there is no reason why the Bill cannot say so. I am just not clear. The wording of clause 4(1) is that

“the person intends to act in a way that would contravene section 1”.

I am not convinced that it applies only if that person has been given a notice. As Andrew said, I do not read that from the Bill. I am not entirely clear what that means. It needs to be clarified as a matter of drafting if clause 4 is to stay.

Professor Tettenborn: I would like a clarification there as well, I must admit. It seems to me that there may be quite an important difference between someone who makes a pronouncement and someone who says something and adds, “but I am speaking personally.” That concerns how we are viewed abroad. It is very good for the conduct of the foreign relations of this country that people abroad know that they can deal with the UK Government as a UK Government. They obviously know that there will be people who disagree with the Government’s foreign policy, but I see nothing wrong in saying that if an official is going to do that, it might be a good idea if they said, “I am speaking in a private capacity.”