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

Debate between Alex Norris and Anum Qaisar

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Ms Qaisar]

Essentially, I want to talk about the impact that a local government can have when people at a localised level can outline how they feel about human rights records. This Government should take heed of that, because at that time it was Thatcher’s Government who imposed sanctions on apartheid South Africa and maintained close links with political leaders in apartheid South Africa.

I have tabled a number of amendments to clause 1. I have spoken at length about amendment 22. Amendment 31 is intended to probe the use of a subjective rather than objective test to establish whether a decision maker has contravened clause 1. In reality, there are so many amendments that could be made to clause 1. That is not just my view; we heard it from numerous witnesses during our evidence sessions last week and from multiple organisations that have submitted written evidence. The Minister should really go back and start from scratch.

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

It is a pleasure to see you in the Chair, Sir George, and to speak to amendment 3, which stands in my name.

We have now moved to the short but important process of line-by-line scrutiny of the Bill, which is itself short but important, with just 17 clauses and a schedule. In the high-quality Second Reading debate, we saw the significant strength of feeling among Members across the House. Frankly, there was not an even party political divide, which always makes things a bit more interesting. I suspect that colleagues’ mailbags, like mine, have been full of strong views from their constituents.

On Second Reading, the Opposition tabled a reasoned amendment setting out our significant concerns about the Bill, which very much start with clause 1. It is a long-standing Opposition position that we do not support boycott, divestment and sanctions-type activity against the state of Israel. As my hon. Friend the Member for Caerphilly said on Thursday, we are implacably imposed to it. I cannot improve upon that sentiment, which is also the view of the Government. It should not have been hard, if that was what the Government wanted, to build consensus around a proportionate set of regulations that would tackle the issue. Instead, clause 1 and the Bill generally are needlessly broad, with sweeping powers and far-reaching effects. Whether consciously or not, that has created an undesirable degree of division.

The Opposition do not think it wrong, in itself, for public bodies to take ethical investment and procurement decisions, given that there is a long history of councils, universities and others taking a stance in defence of freedom and human rights. After all, it is local ratepayers’ money, and it is reasonable for them to want a say in how to spend or invest it. Similarly, the money in a pension fund belongs not to the Secretary of State but to its members, so it is reasonable for members of funds, through their trustees, to wish to express their views on how the money is invested. We know that that is also the Government’s view, because they have carved out a wide range of exceptions in the schedule. It is clearly not in debate that there ought to be a degree of local say on such activity.

However, it is important to say, at the start of our line-by-line scrutiny, that there is a significant difference between legitimate criticism of a foreign state’s Government and what some have sought to do in recent years. There are those who have sought to target Israel alone, hold it to different standards than others and create hostility towards Jewish people in the UK. That is completely wrong, and we fully support efforts to tackle antisemitism in this country. However, this solution is not sufficient. In its unamended form, clause 1 will go far beyond what we are seeking to resolve and will create a series of problems along the way.

My amendment 3 seeks to clarify the ambiguous wording that a public body may not have regard to a “territorial consideration” when making procurement and investment decisions. As the then shadow Secretary of State—my hon. Friend the Member for Wigan (Lisa Nandy)—and I asked on Second Reading, is that supposed to mean that public bodies may refuse goods from a nation state such as China because of a general disregard for human rights, but may not refuse cotton goods from a territory such as Xinjiang state because of concerns about genocide of the Uyghur population? Or does it mean, as I suspect it may, that all actions of all foreign Governments are beyond the scope of local decision makers unless excepted in the schedule? Perhaps it is illustrative of where we are in the process of reviewing the Bill that that remains in doubt. We have seen doubt in the written evidence, and obviously doubt was felt at Second Reading, too. We need greater clarity in the Bill.

My amendment 3 is a probing amendment. I will not seek to divide the Committee on it, but I hope that it will provide an opportunity for the Minister to give clarity. I think we know that the Government mean that it is not territory-only boycotts that are out of scope, but rather that all boycott-type activity, where it disapproves of foreign conduct, is out of scope. I hope to hear that from the Minister.

I turn to the amendments tabled by the hon. Member for Airdrie and Shotts. My amendment 3 would have the same effect as her amendment 23 and is similar to amendment 22, so the same arguments stand.

I am interested to hear what the Minister has to say about amendment 31. It relates to the important debates we had in our evidence sessions about the reasonable observer test, which I struggled with a little. When I asked the witness panel about that, we heard slightly mixed evidence. I was willing to accept it as a term of art which would be well known to the courts and therefore not likely to provide another issue for litigation, but that point seems to be in doubt. I hope that the Minister can be clear about why this approach has been chosen.

I have no doubt that this legislation is heading straight for the courts. That was obvious from written and oral evidence and the Second Reading debate, and it will be obvious throughout our line-by-line discussions. Our debates in Committee will be germane to court proceedings as well, so it is important to have the greatest possible clarity in the Bill and in our discussions.

Finally, amendment 30 relates to a matter that I shall address in detail when we debate clause 4 stand part.

Conceptually, the Bill stands up and is easy enough to understand when we think about public bodies as entities in their own right. However, it swiftly starts to disintegrate when we consider that those entities are made up of a person or persons. I thought that there were some admirable logical gymnastics on that point from the Minister during our evidence sessions. She said that on one day a person might be a councillor, a trustee or a Mayor, and thus the decision maker, but that on another day, in another context, they might no longer be and would therefore not have their freedom of expression fettered. I am not sure that that is credible, but I suspect that the Minister will want to speak to that point, so I hope to hear some greater clarity on it.

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

Debate between Alex Norris and Anum Qaisar

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[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.

--- Later in debate ---

[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.”