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

Alex Norris Excerpts

Committee stage
Thursday 14th September 2023 Public Bill Committees

Division 20

Ayes: 2

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Scottish National Party: 2

Noes: 9

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Conservative: 9

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

I beg to move amendment 10, in clause 7, page 5, line 32, leave out subsection (8).

This amendment removes provisions stipulating that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

It is a pleasure to see you in the Chair, Dame Caroline.

Clause 7 sets out the significant powers to compel information that will be made available to the enforcement authorities detailed in clause 6. As we have heard, the enforcement authority will most often be the Secretary of State. The provisions in clause 7 provide enforcement authorities with the power to prepare and issue an information notice to request from a relevant public body information relating to a decision in respect of the Bill. The enforcement authority—usually the Secretary of State, as I say—can request any information likely to be useful for it to assess whether the provisions of the Bill have been contravened or are likely to be contravened.

Provision is also made in respect of clause 4, the gagging clause. Clause 7 means that the enforcement authority can request information if it is satisfied that a public body subject to the Bill is about to publish, may publish or has already published a statement prohibited by the Bill. The most egregious provision is subsection (8), which provides:

“A person providing information in compliance with an information notice does not breach—

(a) any obligation of confidence owed by the person in respect of the information, or

(b) any other restriction on the disclosure of information (however imposed).”

“However imposed” is a challenging phrase. It seems to grant the Secretary of State or other relevant bodies the power to issue notices that would not only require all information to be handed over, but override normally protected duties of confidentiality, safeguarding or legal privilege. That is very significant. We would argue that those powers of investigation go beyond the powers of the security services to compel information. There is no clarity or sense of what checks and balances there are. Even the security services, which do not have that degree of power, have oversight mechanisms such as the Intelligence and Security Committee of Parliament. Frankly, this seems to be a very strong power to reserve to the Security of State or, indeed, the Office for Students.

We have heard evidence from multiple witnesses who are concerned about these provisions. We did hear from others who are less concerned, but even if colleagues consider the case I have set out to be wrong or overstated, the ambiguity is obvious. At the very least, the Bill is not clear enough. It is important to say that the Government do not—if I have understood properly what the Minister told the Committee last week—want the provisions to supersede legal privilege. That is welcome, and I am keen to have similar commitments regarding safeguarding duties. If that is the case, amendment 10 promotes that.

I believe that the Government ought to accept our amendment, or at least propose an alternative in lieu. What is in the Bill seems overbearing; if not overbearing, it is definitely unclear. That, at least, must be resolved.

[Felicity Buchan]

Amendment 10 would remove clause 7(8), which stipulates that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

The intention behind clause 7 is to provide a power for enforcement authorities to issue information notices to require information from a relevant public body relating to a decision in respect of the Bill. As drafted, the clause sets out a necessary and proportionate power for enforcement authorities properly to investigate potential breaches of the ban.

I must be clear that the clause does not place an undue burden on public bodies in scope of the ban. Information may be requested only if the enforcement authority is satisfied that a person has made or will make a decision or statement in breach of the Bill and that the information is likely to be useful for the enforcement authority’s investigation. Subsection (8) provides standard wording in order to give assurance to the person complying with the information notice that they will not be breaching an obligation of confidence or any other restriction on disclosure. The Bill is by no means unique in including such drafting; the same caveat is provided for in the Agriculture Act 2020, the Building Safety Act 2022 and the Health and Care Act 2022, for example.

The hon. Member for Nottingham North has said that he is concerned that the subsection would override the privilege between lawyer and client. I can reassure him that it does not. Legal professional privilege is a fundamental common-law right, including for those public bodies captured by the Bill, and specific words would not be needed to override it. The information power therefore does not extend to legally privileged material; I can confirm that I will clarify that point explicitly in the Bill’s explanatory notes. I would also add that Richard Hermer KC has subsequently clarified, in written evidence to the Committee on this point, his view that it is likely that a court would not deem legal professional privilege to be overridden by the clause.

Subsection (8) does not provide a right to extract the information, nor does it give a power to the Government; it simply provides the person who is disclosing information necessary to investigate a potential breach with protection against a claim for breach of confidence or any other restriction. I therefore ask the hon. Member to withdraw his amendment.

[Kim Leadbeater (Batley and Spen) (Lab)]

It is really important that legislation passed by the House be clear and unambiguous. As we have heard repeatedly in this Committee from a wide variety of sources, including witnesses who gave oral evidence and those who submitted written evidence, the Bill fails that test.

This subsection is another example of that. The open-ended reference to

“any other restriction on the disclosure of information”

makes no distinction, for example, between somebody expressing a view in a private and in a professional capacity. That cannot be right. Subsection (8) should be deleted.

[Alex Norris]

I am grateful to my hon. Friend the Member for Batley and Spen for her very effective contribution, with which I agree.

I hear what the Minister says about the intention behind the clause and about whether it is necessary and proportionate. I can probably agree with “necessary”, but there is still a divergence of views between us on “proportionate”. I also hear what the Minister says about commonality with other pieces of legislation. I am willing to accept that clause 7(8) is not a unique provision, but I do not think that that means that it is therefore the right provision. It could be badly drafted here and elsewhere too; that would not be without precedent.

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[The Chair]

With this it will be convenient to discuss the following:

Amendment 11, in clause 10, page 7, line 20, at end insert

“within 60 days of the passage of this Act.”

This amendment specifies that regulations prescribing a maximum monetary penalty must be made within 60 days of the Bill being passed

Amendment 12, in clause 10, page 7, line 21, leave out “may” and insert “must”.

This amendment, together with Amendment 13, would require the publication of regulations in matters to which the enforcement authority must, or must not, have regard in exercising its powers within 60 days of the passage of the Act.

Amendment 13, in clause 10, page 7, line 23, at end insert

“within 60 days of the passage of this Act.”

See explanatory statement to Amendment 12.

Clause 10 stand part.

[Alex Norris]

I rise to speak to amendments 11 to 13, which relate to clauses 9 and 10. Clause 10(1) states that:

“The Secretary of State must, by regulations, prescribe a maximum penalty for the purposes of section 9”.

Clause 9 states that an enforcement authority may impose a monetary penalty on someone if they do not comply with the provisions of the Bill. Similarly, clause 10(2) states that:

“The Secretary of State may, by regulations, make provision about matters to which the enforcement authority must, or must not, have regard in exercising its powers under section 9”,

which refers to the power to impose monetary penalties.

The regulations set by the Secretary of State will be highly consequential, because they will show how the sharper elements of the Bill, which we have already discussed, will interact with the rights and freedoms of individuals. They will outline the monetary penalty, but also what the enforcement authority—most often, the Secretary of State—will weigh in making a decision. As drafted the Bill does not specify when the Secretary of State must make these regulations and when they will take effect. That leaves a degree of ambiguity, and a gap where people will be waiting to see when the provisions start to bite.

The Minister previously talked about measures being necessary and proportionate. It is necessary to have an enforcement regime, and proportionate for the shoe to drop at some point; otherwise there is no point in having the legislation. Also, having made a significant number of points around Henry VIII provisions, and, at length, been quite displeased by some of them, even someone with my hard heart would say that it is proportionate for those to be set by regulations, because they will change over time.

The quid pro quo for that is what I have set out in amendments 11, 12 and 13, which remove some of the ambiguity and has the Government say when they intend to set the regulations. These probing amendments—I will not press them to a Division—set out what ought to happen within 60 days of Royal Assent, which would give a degree of clarity for those who are getting their decisions in order and understanding when the provisions are likely to fall. I think that is proportionate. If 60 days is too short or long a period, I hope the Minister will say when the Government intend to do this. I suspect they want to get on with it, but people ought to have that clarity.

[Felicity Buchan]

Amendment 11 would require the Secretary of State, via regulations, to set a maximum fine that can be imposed on public authorities in breach of the ban within 60 days of the Bill being passed. The suggestion by the hon. Member for Nottingham North to set a deadline of 60 days for the Secretary of State, while well intentioned, is inappropriate.

It is crucial that the threshold for fines is carefully decided in consultation with enforcement authorities, including the Office for Students and The Pensions Regulator. Since that will also be done by the affirmative procedure, the measure will need to go through both Houses. It will need to go through the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee in the House of Lords, and it would need to be debated in both Houses. Clearly, it is a piece of legislation that the Government want to be implemented, so I give the Committee my word that we will do this as expeditiously as possible. It is wrong, however, to commit to 60 days.

The same arguments apply to amendments 12 and 13. We agree that expediency in setting out details of the enforcement regime is important, but we need to take into account proper consultation with the regulators and enforcement authorities, as well as due scrutiny in both Houses. For that reason, I ask the hon. Member for Nottingham North to withdraw the amendments—I know that he said they were probing amendments.

[Alex Norris]

I am grateful for that answer from the Minister. I am happy to withdraw the amendment on that basis. The point about consultation is important, so I hope that is a full consultation, both with potential enforcement authorities and those who speak for those that are going to fall under the provisions, such as the Local Government Association.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12

Application of prohibitions

Question proposed, That the clause stand part of the Bill.

[Alex Norris]

Clause 12 adds back the local government pension scheme. We heard in evidence just how seriously the local government pension scheme takes its fiduciary duties. This is overreach. The case for the inclusion of the local government pension scheme is weak. Again, I think this will play out later down the line in further discussions in the other place. Its inclusion, which is significant and will add an extra burden and anxiety for people working hard to deliver important benefits for their members, is not really necessary, so I hope the Minister will reflect on that.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clauses 13 to 16 ordered to stand part of the Bill.

Clause 17

General provision

12 noon

[The Chair]

Amendments 16 and 17 to clause 17 were debated in an earlier group. I have not selected those amendments for separate decision, because they are incompatible with an earlier decision, namely that clause 2 stand part of the Bill.

Amendment proposed: 1, in clause 17, page 10, line 39, at end insert—

“(1A) Section 1 does not apply to decisions made by—

(a) Scottish Ministers, unless a motion has been passed by the Scottish Parliament indicating its consent to this Act;

(b) Welsh Ministers, unless a motion has been passed by Senedd Cymru indicating its consent to this Act;

(c) a Northern Ireland department, unless a motion has been passed by the Northern Ireland Assembly indicating its consent to this Act.”—(Wayne David.)

Question put, That the amendment be made.

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[Felicity Buchan]

May I take this opportunity to thank the entire Committee? We have worked effectively and expeditiously. I also thank the two Chairs and the Clerks.

[Alex Norris]

Similarly, I want to put on record our thanks to you, Dame Caroline, and Sir George, to the top-class Clerks for all their help, to the civil servants for their work and to my colleagues. I draw special attention to my hon. Friend the Member for Wigan (Lisa Nandy), who was shadow Secretary of State on Second Reading, for her efforts and support while we have been getting our work together, and to the Minister for her collegiate work, both inside and outside this room. I also thank her colleagues.

[Chris Stephens]

May I first thank you, Dame Caroline, and Sir George for chairing these sittings? I also commend all Members. There has been much debate around the Bill, and many of us have regarded it as essential that we debate it in a tone that is appropriate but also robust. I think we have done that in this Committee. I would like to thank all hon. Members for the tone they have adopted and also for their good humour. That has been essential for the Bill, which has been fairly controversial.

We will obviously reflect on the changes we want to see in the stages to come. I do think there is going to be a challenge on the Government’s side, because a number of their Members are very critical of the Bill. The fact that no amendments have been agreed will be a test for them. I again thank you, Dame Caroline, and Sir George, as well as the Clerks, for all the help we have had.

Lastly, it was unfortunate that there was no evidence from a Palestine support group in our evidence sessions. I do not believe there was a conspiracy on that. I think it was perhaps more cock-up than conspiracy, but I hope it is something we will all learn from. We should have all views heard, and we might all want to take that point away and reflect on it.