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

Alex Norris Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[The Chair]

But it is the system. I am going to move swiftly on now. A number of Members have indicated that they want to take part. I call Alex Norris.

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

Q The key test in clause 1 for the action of a decision maker is whether it

“would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval”.

Are you content with the phrase “reasonable observer”? Do you think it is tight enough? Could it be clearer?

Jonathan Turner: Yes. “Reasonable observer”, or “reasonable person”, is used throughout English and Welsh law and so on. It is the basis of the law of negligence. You interpret contracts with reference to how they are understood by the reasonable person. In legislation, similarly, and in lots of other documents it provides an objective test, instead of looking at the subjective intention of the maker of a statement. That has the benefit of greater certainty and greater clarity, which is why it is used.

I am very happy with it being the formulation that is used. I do not think that there is any problem with it at all; I think it is the best way of doing it. You would have terrible difficulties if you tried to do things in terms of the subjective intention of people adopting the decision.

[Alex Norris]

Q So can we have confidence in it as essentially a term of art that will be easily understood by the courts and is not likely to lead to a series of cases based on whether or not one is reasonable? Is that likely to be tested?

Steven Barrett: It is not likely to be tested, because it is quite a settled test. It is a legal mechanism for taking subjectivity and turning it into objectivity, which is what law does—and which is why when I speak in public on law I have the unique and remarkable opportunity to annoy everyone. It is an acceptable test and I would not worry about it. The courts are familiar with it.

--- Later in debate ---

[The Chair]

To use the same approach I advocated for the previous question, if the two other witnesses want to concur with or dissent from the response that Mr Timms gave, could they say so and perhaps raise any additional points that they think would be helpful to the Committee?

Yasmine Ahmed: Yes, I wholly concur with what Dave said. I would just add that first, as Dave noted, it has to be illegal. Fossil fuels, not necessarily the extraction of fossil fuels, are not illegal—that has been well covered. What about a situation where there are dual considerations? We see many situations where deforestation happens, for example, and there are attacks on indigenous communities and human rights defenders. What happens then? Is that caught by the Bill or not? As I mentioned, there is a litany of other human rights abuses and international crimes that are not captured by the Bill, so the exemptions are certainly by no means exhaustive. The very point that I would argue is that the Bill cannot, because the whole point of the Bill is to stop public bodies being able to carry out their due diligence responsibilities effectively.

Peter Frankental: I concur with Dave, but I want to add one point on the exemptions. The vast majority of cases reported of companies abusing human rights are not litigated—they are not subject to civil or criminal litigation; they are exposed by the media or by non-governmental organisations—so the exemptions defined in terms of breaches of law are unlikely to apply and no public body would feel confident in using the exemptions unless there has been a legal case. In so many jurisdictions, the law either is not in place or there is corruption or weak regulatory systems. The independently commissioned report on modern slavery by Frank Field, Baroness Butler-Sloss and Maria Miller drew attention to the very weak regulatory systems in the UK for implementing the Modern Slavery Act, so any reliance on the law will put public bodies in a very weak position.

[Alex Norris]

Q To build on that point, we have heard very strongly from panellists that you do not believe that the exceptions in the schedule to the Bill will protect environmental concerns. We have previously heard from the Government that they believe that it does. Assuming that that is their intent, how would you bridge the gap between what is on the face of the Bill and what is said to be the intention of that exception? Are you saying that it is irredeemable, which I think was the point that you made, Yasmine?

Dave Timms: You could increase the scope of that exemption, but you would still be left with all the problems that have been pointed out. You could have the environmental misconduct exemption extended to any environmental issue or any issues surrounding environmental harm, or include anywhere that there is a breach of international environmental treaties or agreements, but that would still leave you with the problem that Yasmine pointed out: the fact that in so many cases, environmental problems are related to human rights abuses. Look at logging in South America, where there is a high degree of overlap with human rights abuses; you would not be able to do it. You also would not be able to deal with the problem you have in clause 1, which is that any activity from civil society would be dragged into this as well. Often environmental organisations such as Friends of the Earth will campaign around concerns that overlap the environment and human rights. You might be able to chip away at the damage, but it is really hardwired into this from the start.

We have some experience of dealing with the kind of language in clause 1, which talks about a “reasonable observer”, because it is really similar to the chilling effect caused by the language in electoral law that bites on third-party campaigners, where you must have regard to what is reasonably intended to influence voters. That has had a huge chilling effect, which has been documented by parliamentary Committees, on the activity of civil society in campaigning on legitimate issues around election periods. We have seen language like this: it has been drafted in a way that is vague, and language similar to this has been shown to have a chilling effect on the activities of legitimate civil society organisations trying to achieve legitimate aims.

[The Chair]

Does anyone have anything to add to that? No? Okay. I will come next to Dr Luke Evans.