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

Anum Qaisar Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

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

I declare my membership of Unison. I understand that an individual from Unison will give evidence at this session.

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

As per my entry in the Register of Members’ Financial Interests, I recently visited the occupied territories. The visit was paid for by Amnesty, who will join us later this week.

[Paul Holmes (Eastleigh) (Con)]

I have been on a Conservative Friends of Israel trip, and James Gurd is a personal friend of mine.

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

Anum Qaisar Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[The Chair]

Thank you, Minister.

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

Q Thank you for joining us this afternoon, Stephen. Can you clarify how the Bill will impact the UK’s long-standing position on illegal settlements? Will the Bill stop public bodies from adopting a stance of not buying and trading goods from illegal settlements, bearing in mind that those settlements are illegal under international law?

Stephen Cragg: I think the position is that advisory opinions are provided by international courts that say that providing support for settlements etc is something that should not be done. One of the concerns is that this is something that might get fought out in the courts under the Bill—councils thinking that they can take things into account that mean that they are not breaching the UK’s international human rights and law obligations but being unsure about that and seeking clarification from the courts, and individuals and bodies thinking that there will not be a breach of the UK’s international law obligations fighting that case or raising their points of view in the courts and the courts having to resolve those issues. One can see that that is something that might happen quite quickly.

[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.

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[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.”

[Ms Qaisar]

Professor Tomkins, do you want to come in?

Professor Tomkins: Yes, thank you. First, this is not a gagging clause. Anybody who thinks it is does not know what a gagging clause looks like. Nothing in clause 4 prevents the current First Minister of Scotland, or any Minister or councillor, from saying whatever they want about the appropriateness of foreign policy, or indeed the appropriateness of policy in a foreign state. The prohibition is simply and narrowly focused on making statements that proclaim that a Minister or a councillor would have decided to do something unlawful if they had been able to do so, which they cannot do anyway. The idea that this is a gagging clause needs to be firmly scotched, if I can put it that way.

Beyond that, I do not have much more to say, except to repeat a point that was made in an earlier session. Councillors should not be wasting their time opining about foreign policy, because it is not their job. Neither should Ministers of devolved Administrations, because it is not theirs either.

[Ms Qaisar]

Q Thank you so much for that, Professor Tomkins. I have a couple more questions. We are under time pressure, so if you could all stick to short contributions, that would be appreciated.

The people of Scotland have a strong history of being at the forefront of political campaigns. As was said earlier, Glasgow proudly stood against South Africa’s apartheid in the 1980s. In 2014, the University of Glasgow became the first university in Europe to divest from the fossil fuel industry. Given that public bodies such as universities would now be prevented from taking such a stance, is the Bill compatible with the free speech protections in the European convention on human rights?

Professor Tettenborn: I am sorry; I did not hear what Glasgow University had divested from.

[Ms Qaisar]

The fossil fuel industry.

Professor Tettenborn: Well, that would not be affected. That is not what the Bill is about. It is far worse, if I may say so, for a public authority in this country to have a foreign policy than for it to have an environmental policy. I know that it probably will not go down very well north of the border in Shotts, but I do not think it is the business either of the Scottish devolved Government or of Scottish local authorities to engage in foreign policy. I have no enormous objection to any public body saying, “We will not invest in fossil fuels.”

[Ms Qaisar]

Q Does anybody else want to come in? If not, I will move on to my last question.

Okay. Professor Tomkins, you have spoken about the fact that you were a Member of the Scottish Parliament, and I understand that you are a former adviser to a Secretary of State for Scotland. Constitutional law is your area of expertise, and you have said that you are keen to see this legislation implemented across all four nations of the UK. I am interested in learning a little bit more about what impact the Bill will have on the independence of Scotland’s Parliament and, by extension, our Government in Holyrood.

Professor Tomkins: I do not think that it will have any impact on that at all. The Scottish Parliament is democratically elected to pursue policy objectives within its legislative competence. That legislative competence is set by the United Kingdom Parliament in the Scotland Acts, as amended. It is absolutely clear that that legislative competence does not extend to foreign policy. The Bill has no impact at all on the powers and competences of the democratically elected Scottish Parliament—none at all.

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[Wayne David]

Q Andrew, you will have heard the last question in the last session, which touched on foreign policy. I made a statement that foreign policy is a non-devolved matter, but human rights is an issue that belongs to central Government, local government and devolved Government—it belongs to all citizens in a sense. Is that your view as well, and if it is, would you care to elaborate to say why you have fundamental concerns about this piece of legislation?

Andrew Whitley: Human rights are universal, and they need to be applied even-handedly and in a systematic fashion; there can be no quarrel or disagreement over that. Any attempt to try to make distinctions over how human rights should apply in one territory or another undermines the authority of those who are attempting to enforce them, and it makes a mockery of the application of human rights if they are applied selectively. I believe it is the responsibility of all citizens, as well as public bodies, to be able to apply ethical, moral human rights considerations in their decisions, and those can apply to political matters and they can apply to other matters. Human rights also cover the provision of shelter, the provision of water supplies or adequate education; these are all basic fundamental human rights. I think it is the responsibility of all bodies in this country to take human rights considerations into account and to apply them in a consistent manner.

[Ms Qaisar]

Q Thank you so much for joining us today, Andrew. You have spoken about the historical influence of Britain, so I am interested to learn a little bit about what impact you think the Bill will have on the UK’s relationship with the occupied territories, and with Palestinians across all four nations here who wish to exercise their freedom of expression so that the Israeli Government can be held to account for their actions?

Andrew Whitley: I think the impact of the Bill will be to hearten the most extreme nationalistic, racist Government that have ever been in place in Israel. I think that it will cheer Bibi Netanyahu and his Ministers and will provoke divisions within Israel. I should put it on the record here that a large number of sensible, middle-of-the-road Israelis are deeply troubled by the situation in the occupied territories and by their own Government’s actions, including the expansion of the settlements. We should be supporting those people, not the extremist Government, who are inflaming hatred in the country. As far as the Palestinians are concerned, I regret to say this, but I am afraid they will see the passage of this Bill as yet another act of betrayal on the part of Britain.

[Ms Qaisar]

Q The UK Government have a long-standing position on illegal settlements. Would the Bill stop a public body from taking a stance of not buying and trading goods from illegal settlements, bearing in mind these settlements are of course illegal under international law?

Andrew Whitley: I am sorry; would you mind repeating the question? I am having a little difficulty hearing.

[Ms Qaisar]

That is fine; I will also speak more slowly, just in case it is my accent. I was asking if you could clarify how the Bill will impact the UK’s long-standing position on illegal settlements. Would the Bill stop a public body from taking a stance of not buying and trading goods from illegal settlements within the OPT, bearing in mind the settlements are legal under international law?

Andrew Whitley: Members of this Committee will be well aware that the United Kingdom played an important role in the passage of UN Security Council resolution 2334 in December 2016. That is the last and most important resolution that refers to the absolute prohibition on the building of settlements in the occupied territories. As the UK supported that law, I would hope that it would take action to be able to continue to defend its implementation, which has been sadly lacking. Certain forms of pressure, I believe, are appropriate to encourage changes of behaviour, because there are many, including many Israeli friends of mine, who would argue that only through the exercise of meaningful pressure by Governments who can have influence over Israel is it likely to rethink its direction. I think that would certainly apply to the continued expansion of settlements, which are making a two-state solution impossible.

[Ms Qaisar]

Q Finally, what impact will the Bill have on your organisation’s work out in Israel and the occupied territories?

Andrew Whitley: It will not have a direct impact on our work. Our focus, as I said at the beginning, is on educating the British public and encouraging the British Government and decision makers in the United Kingdom, including Members of Parliament, to act in a way that upholds Britain’s historical responsibility. We believe that Britain has an important responsibility, not just as a legacy from the past, but today. We think that the passage of the Bill, if it has the effect that many argue it will have—to chill free speech and to prevent arguments that there are legitimate non-violent tools that can be used to encourage a change of behaviour on the part of Israel—would be deleterious to our work.

[The Chair]

I am mindful of the fact that we have to conclude this part of the session at 4 pm.

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[The Chair]

Five Members have indicated that they would like to ask questions, and we need to conclude by 4.30 pm—just so everyone is aware.

[Ms Qaisar]

Q Thank you for joining us. Mark, I have to be honest, I am a member of Unite, not Unison—do not hold that against me. Scotland has a proud history of promoting social justice, human rights and respect for international law on the world stage. In 1981, Glasgow City Council decided to award Nelson Mandela freedom of the city. It was the first city in the world to do so. In 1986, St George’s Place in the city centre was renamed Nelson Mandela Place. Had this Bill been introduced in the 1980s, the legislation would have stopped Glasgow City Council from taking those steps. Why is that so concerning?

Rozanne Foyer: It is really concerning. Based on what some of the other expert panellists have said today, I have to say that I fundamentally disagree with some of them, particularly Mr Tomkins’s assessment of devolution. We need to understand the point of view. This is not about local authorities or devolved Government setting foreign policy; this is about procurement policy, democracy and taxpayers’ money. It is arguable that with the anti-apartheid movement, Glasgow City Council started a wave that the UK Government and the rest of the world eventually had to listen to and go with. I believe strongly that democracy starts on the ground with the people and moves up from them. The Bill centralises reserved powers. It does the opposite of devolution and of giving power to the people. That is really concerning. With the Bill, we would certainly not have got to that position, and that important work that happened in the ’80s would not have been able to take place.

My member is a member of the pension scheme, and has a democratic right in workplace democracy to have a say on what happens to their reserved pay. It is their money that sits in the pension scheme. They have a right to have a say in how that money is spent and to ensure that it is spent ethically. My members are citizens of local authorities and pay their taxes to local authorities and to the Government. They have a right to demand that their local authority and Government adhere to human rights policy, and adhere to the best standards of employment policy and of policy on procurement. Procurement is devolved, and so are human rights, so are things like economic development. It is not as simple as saying that these devolved authorities cannot talk about, or make policies that relate to, foreign policy. What we are talking about here is procurement policy and how citizens’ taxes and pension moneys are spent. As far as I am concerned, the Westminster Government and the Secretary of State have no business in telling us how to do that.

[The Chair]

Just to interrupt very quickly, Rozanne, we are struggling to hear you and Hansard is struggling to pick up what you are saying for the record. Please can you do whatever you can to speak as loudly as possible into the microphone to try to help us?

Rozanne Foyer: I will do what I can.

[Ms Qaisar]

Q Mark, do you want to add anything?

Mark Beacon: Not really, apart from the fact that I do not think many people would look back now on the actions that local authorities took around the anti-apartheid movement—their involvement in action against apartheid —and the investment and procurement decisions they took and say that that was wrong. Of course, we are now in a situation in which procurement is far greater; in the UK, we are talking about public bodies procuring up to £380 billion of goods and services. It is amazing to think of the positive impact that that procurement could have internationally if public bodies were to utilise it to encourage companies to uphold the UN guiding principles on business and human rights, for example.

[Ms Qaisar]

Q A final question from me: unions have historically been at the forefront of political causes, so will the Bill impact the ability of members of trade unions to take a stand on issues such as human rights abuses? Mark, would you like to start?

Mark Beacon: Yes, it will. If you look at Unison’s international work, we work as a key part of Public Services International, which is the global trade union federation for public service workers, and we campaign on a wide range of international issues. Palestine is one of our priorities at the moment, but there are also Turkey, Brazil, Colombia, and business and human rights. We work on Zimbabwe and a range of other issues. As public service workers, that is really important. Our members will be very concerned about, first, how their pensions are invested and, secondly, procurement decisions and the impact that they have internationally. For example, uniforms and PPE—those kinds of issues—and where resources are acquired are major issues. It is the same for members of the public, who will share some of those concerns. The Bill prevents us from acting on those where there is a potential for political or moral disapproval of the policy or conduct of a public authority in a foreign state. It is extremely far reaching and will infringe on quite a lot of our work.

[Ms Qaisar]

Q Thank you. Roz, do you have anything to add to that?

Rozanne Foyer: Trade unions have been using these policies, as I said, for quite some time in a range of situations. I think that we would want to be able to continue to operate in that way. It is an important part of our democracy that our members and citizens are able to influence public bodies and elected officials at all sorts of levels. It is very important. One of the things for which trade union members in Scotland campaigned for a long time was a Scottish Parliament, and another big concern for us is the way that devolution to that Parliament is being potentially undermined by this piece of legislation. That is another area where we have some key concerns about this Bill.

[Wayne David]

I apologise if the speakers have already touched on this; I did not pick up everything that was said from Scotland. Mark, you have written a very detailed paper, and I thank you for it. One of the very important points you make in that paper is the fact that public bodies in Wales and Scotland are already obliged to follow ethical practices with regard to employment, for example, and need to take into account human rights considerations. My concern is that the Government have perhaps not fully appreciated that fact. This legislation, which will apply—so they tell us—to all parts of the United Kingdom, does not take into account what already exists, and it might inadvertently cut across or undermine existing regulations. Is that your view? If it is, can you say a bit more?

Mark Beacon: Yes, we share those concerns. Some positive work is taking place in Wales around procurement, primarily focusing on labour rights but branching out into other areas. Again, there is some positive work in Scotland and, I believe, in Northern Ireland. We are deeply concerned about the impact that the Bill will have on that work in devolved nations, particularly considering that both investment and procurement are devolved responsibilities. When we look at areas such as labour rights, which are obviously fundamental to us, and at exceptions in the schedule, they are very narrowly defined. They are primarily focused on areas around modern slavery and so forth, and there are references to the minimum wage as well, but they do not go anywhere near meeting the International Labour Organisation core conventions. Areas such as child labour, equal remuneration, the right to collective bargaining, freedom of association and so forth are not referred to at all in there, so it will undermine that work.

Rozanne Foyer: We have a range of devolved policies in Scotland that relate to our Fair Work First approach to commissioning and contracting. We do not have devolved employment law, but we have an extensive range of guidance and benchmarks that we expect all contractors who want to get public money to adhere to. The Scottish Government also has a vision for trade that sets out fair work indicators as well. Although we cannot implement laws, because employment law is not devolved, we fully use our right to implement and use the money as leverage. I believe that is a very legitimate way to create a landscape of better employment rights and good practice, both domestically and internationally, and that work would be severely undermined by the current proposals.

In terms of the other area I think could be really undermined, we must remember that in Scotland we have a Parliament where just over half of the representatives—the majority of representatives—support full independence. It would be legitimate and in the public interest for citizens and members of the public to know and understand what the Scottish Government might choose to do in the context of independence if they had the power to have particular international procurement policies. It is very disturbing to me that clause 4 of the Bill might well prevent that sort of debate or announcement from taking place. At the moment, the Scottish Government are producing a series of papers that look at the detail of what an independent Scotland might look like. The STUC does not have a policy on independence, but you can bet your bottom dollar that we are looking very closely at what the potential proposals might be and thinking about how they might impact our members. I would not like the Bill to preclude the Scottish Government from making us aware of what their intentions might be.

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

Anum Qaisar Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[The Chair]

We are running rapidly out of time, but there is an opportunity for one very quick question.

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

Q You said that you had some concerns about the drafting of the Bill. Can you explain them, please?

Steven Barrett: Yes. Mr Hermer actually flags them himself, and he is right. Paragraph 6 of the schedule is a constitutionally unique event. Given everything that I have said and explained to you here, we have never recognised all international law as binding. On my reading of that paragraph, it seems to me an extraordinary statement. If you do not amend that, I seriously suggest—well, I would just get rid of it, to be honest, because it is giving supremacy to international law. It is conceding the power that the voters gave you and giving it to this great, great mass that is thousands of years old. People will be able to reach into the great mass that is international law and pluck out everything. You could probably pluck out bits that contradict the other bits. They will be able to pluck or draw out something to justify whichever boycott they want. The people who are motivated to do boycotts are very strongly motivated to do them. They will use that paragraph.

I also think that they will use paragraph 4 on finance, which is just a bit woolly. I think it could be tightened up. I would be very happy to help with the drafting; I might write a note after this, if that would assist anybody. I am always happy to help Governments of any colour. Should the Government change, I will be happy to help—on law only.

I wanted to raise those two issues. Paragraph 6 in particular is really a constitutional aberration. It gives away your sovereignty to a great, amorphous entity that is not properly controlled. At least the EU had structures and was under control. If you think of international law as like a territory, it has carved out a space for itself and it is stable. The rest of international law is not stable.

[The Chair]

On behalf of the Committee, may I thank the witnesses? I am sure it has been quite a probing experience for you, but even if individuals might not agree with the advice that you have given, I think they respect the fact that it was given in good faith and comes from a base of knowledge that is very helpful.

Examination of Witnesses

Yasmine Ahmed, Dave Timms and Peter Frankental gave evidence.

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[The Chair]

Thank you. Two more people have indicated that they want to ask questions. In order to save time, I will take the two questions and then perhaps the witnesses can determine between themselves who will answer them.

[Ms Qaisar]

Q Thank you for joining us today. What impact will the Bill have on the UK’s relationship with those in the occupied territories, and with Palestinians across all four nations here who wish to exercise freedom of expression so that the actions of the Israeli Government can be held to account?

[The Chair]

I will bring in Brendan Clarke-Smith now for his question, and then you can share the answers between you.

[The Chair]

I do not know who wants to take on the two questions. I will leave it to you.

Peter Frankental: Sorry, I could not hear the first question. Could you please repeat it?

[Ms Qaisar]

It was to ask what impact the Bill will have on the UK’s relationship with those in the occupied territories and with Palestinians here, across all four nations, who wish to exercise their freedom of expression so that the actions of the Israeli Government can be held to account.

[The Chair]

Mr Frankental, will you tackle that one?

Peter Frankental: I will begin with the second question. Sorry, I did not completely hear the first question. On foreign policy, I do not believe that procurement decisions that are taken on the basis of due diligence engage foreign policy at all. That is a human rights or environmental due diligence matter.

Yasmine Ahmed: To add to that, if you are talking about trying to give certainty to public authorities, what this Bill does is create complete uncertainty. The UK’s business risk guidance and the UNGPs say something completely contrary to what this Bill says in terms of being cautious, considering your human rights and environmental responsibilities, and doing adequate due diligence, and in terms of the UK Government’s position on the occupied territories and particular settlements within them. How we provide clarity to public bodies is a really important question. This Bill is certainly not the way to do it, because it provides much more uncertainty.

I am happy to attempt to answer the other question, if that is helpful. What the Bill means in relation to people in occupied territories is a really good question. I might expand on it slightly to say that from an international relations perspective, we should be thinking about a Bill that combines and excludes activities in Israel within the green line and the occupied territories. I am being very clear about what that says in relation to what the UK Government are saying about the Russian occupation in Ukraine, and the crimes that are being committed in that context.

It is a really important question because we should be thinking about community cohesion from both sides of the coin. What the Bill essentially says is that advocating for divestment from Israel, where Israel is committing crimes and a company is implicated in those crimes or human rights abuses, is wrong because it is linked to antisemitism. The other side of the coin—as you rightly say—is about what that does for Palestinian groups advocating for their rights, and the community cohesion between the two groups. A lot of the Jewish communities we have been engaging with have said, “We do not want our name associated with the Bill, because we are not saying that antisemitism is linked to the crimes and abuses that are being committed by Israel.”

It is very clear that there is a problem of antisemitism in this country; you just have to look at the statistics. However, the way the Government should be approaching the issue, if they were properly thinking about it, is through the equalities duty, education and speaking to communities. They should not be creating a law that is going to create many more problems, provide impunity, and undermine their business and human rights responsibilities and international obligations.

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[Dr Evans]

Q We heard from a witness in the session the other day about comparisons. His position was that the Bill is relatively somewhere in the middle compared with somewhere like France or some of the states in the US. Given your experience, what is your thought on how this fits into the international comparisons?

Richard Hermer: There are some examples of American states passing what I would describe as more extreme versions of this. France is interesting because the Strasbourg court has looked at France on two occasions and the most recent one upheld that its laws were incompatible with article 10. There is not much else out there by way of example. Israel has its own laws on BDS. I am not sure where that takes us. Ultimately, Parliament has to look at this Bill on its face. How it stands up in comparison does not tell us anything about international law—it might help with the context, but beyond that, I am not sure that it would necessarily help the Committee.

[Ms Qaisar]

Q Thank you for joining us today. Clause 4 has been referred to as a gagging clause by some. Why can it be seen as so problematic?

Richard Hermer: I am firmly of the view that it is incompatible with article 10 of the European convention on human rights, which is incorporated into our law via the Human Rights Act. I have listened carefully to the views of others, not least the way that it has been explained by the Minister, and I respectfully disagree.

There are two elements to this. First, who does it bind? There is no dispute that it does not bind a public authority per se, but it would undoubtedly bind a leader of a council or a vice-chancellor of a university—that is, the full array of public authorities or bodies acting as a quasi-public authority. Certainly, it is incapable of engaging the free speech of those individuals. Secondly, there is an analogue to the free speech of the individual in article 10, which is also the right of the public to have information. This engages article 10 in both those ways.

Once we have engagement of article 10, it then falls to the Government to justify it under article 10(2) I have set out in my first opinion the text of article 10(2). There are a number of hurdles that a Government would have to pass. We should also remember that this is not just in the context of BDS; this is in the context of any country and any conflict. I set that out in paragraph 34 of the opinion that the Labour party published. In order to establish that there was no breach of article 10, it would need to be shown that the restrictions were necessary

“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

It is almost impossible to see how there could be a justification here. As matters stand, this would be deemed incompatible with the Human Rights Act.

[The Chair]

Thank you. This will be the last question.

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

Anum Qaisar Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[The Chair]

I have a few preliminary announcements. Hansard colleagues would be grateful if Members emailed their speaking notes to [e-mail]. I remind people to switch electronic devices to silent, please. Tea and coffee are not allowed during the sitting.

The selection list for today’s sitting, which is available in the room, shows how the selected amendments have been grouped for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments take place not in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection list shows the order of debates; decisions on each amendment are taken when we come to the clause to which the amendment relates.

The Member who has put their name to the leading amendment in a group will be called first. Other Members will then be free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate on a group, I will again call the Member who moved the leading amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. Any Member who wishes to press any other amendment in a group to a vote needs to let me know.

Clause 1

Disapproval of foreign state conduct prohibited

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

I beg to move amendment 22, in clause 1, page 1, line 5, leave out

“must not have regard to a territorial consideration”

and insert “must not act”.

This amendment would remove the reference to a “territorial consideration” in the legislation.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 31, in clause 1, page 1, line 6, leave out from “that” to “influenced” in line 7, and insert “is”.

This amendment is to probe the use of a subjective, rather than an objective, test to establish whether a decision-maker has contravened clause 1.

Amendment 23, in clause 1, page 1, line 9, leave out subsection (3).

This amendment would remove the reference to a “territorial consideration” in the legislation.

Amendment 3, in clause 1, page 1, line 13, leave out “or territory”.

This amendment clarifies that considerations for the purposes of section 1 must relate to the foreign countries, rather than territories within foreign countries.

Amendment 32, in clause 1, page 1, leave out lines 20 to 22.

This amendment is to probe the impact of the legislation on individuals, such as those working within public authorities.

Clause stand part.

[Ms Qaisar]

It is a pleasure to serve under your chairmanship, Sir George.

Antisemitism is on the rise across the UK and the globe. It is a disgusting stain on society, and something must be done to eradicate it completely. There must be strong and meaningful legislation to tackle it so that Jewish people feel and are safe. That is something that I and my SNP colleagues want to see, but frankly it is also something that people across the House want to see. Sadly, however, the Bill is not an appropriate approach.

Last week we heard from Yasmine Ahmed, the UK director of Human Rights Watch, who said:

“I have never read a piece of legislation that is as badly worded as this. It is ambiguous and runs a coach and horses completely through ESG responsibilities and business and human rights responsibilities. I think it is a very pernicious and worrying piece of legislation”.––[Official Report, Economic Activity of Public Bodies (Overseas Matters) Public Bill Committee, 7 September 2023; c. 86, Q124.]

The Bill is in need of significant amendment to tackle some of the fundamental flaws in its current form. Some clauses need to be scrapped altogether. The language in clause 1 creates ambiguities around the objectives of the Bill; it is so poorly drafted that it is difficult to determine what the Bill seeks to accomplish. Of particular concern is the phrasing relating to “a territorial consideration” in clause 1(2). As drafted, it could be interpreted in such a way as to focus the Bill solely on limiting disagreements among decision makers on territorial matters, rather than on the foreign and domestic actions of foreign states. That means that if a decision maker were to make an investment or procurement decision based solely on the domestic actions of the foreign state that did not relate to a territorial issue, the view could be taken that it was not covered by the Bill.

In written and oral evidence, Richard Hermer KC explained that if a decision maker refused to buy goods from China based only on its track record on human rights, they would not be covered by the Bill. If, however, the same person refused to buy goods from China because of its forced labour impacting cotton in Xinjiang, that decision would be covered by the scope of this Bill. That interpretation of clause 1 creates obvious issues around the Bill’s applicability. We therefore ask the Government to accept amendment 22.

Clause 1 also seeks fundamentally to reduce the autonomy of local councils and the devolved nations to take a stance on human rights matters. The measures that seek to remove the ability of local government to take a stance based on the political and moral actions of a foreign state mark a dangerous step in reducing autonomy to speak out in support of human rights. Political discourse in debates over foreign policy matters to everyone. It is legislated here in Westminster, but it enriches society when people are involved in the discussions. Central Government sit upon policy, legislation and agenda, but it is a cornerstone of democracy that people at a localised level be able to have discussion and debate around human rights, which is inevitably linked to foreign policy.

I am not calling for foreign policy to be set by local government, but as a society we benefit when local government makes decisions based on human rights. We saw that in the 1980s, as my hon. Friend the Member for Glasgow South West and I brought up repeatedly last week. In 1981, Glasgow City Council stood up against apartheid in South Africa. Glasgow was the first city in the world to award Nelson Mandela the freedom of the city. Five years later, St George’s Place in the city centre was renamed Nelson Mandela Place. In 1993, Nelson Mandela visited Glasgow. In the city chambers, he proclaimed:

“While we were physically denied our freedom in the country of our birth, a city 6,000 miles away, and as renowned as Glasgow, refused to accept the legitimacy of the apartheid system, and declared us to be free.”

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

As a Scot, I am very proud of the actions of Labour-led Glasgow City Council in changing the name of St George’s Place and in being the first city to give Nelson Mandela freedom of the city. I have looked at the Bill, and I cannot see anything in it that would have prevented Glasgow City Council from doing that; I agree that there are things in it that have a chilling effect on local government and public institutions, but I am not quite clear how relevant the hon. Lady’s reference to the Bill is.

[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.

--- Later in debate ---

[Felicity Buchan]

I was going to explain that, but I will give the condensed version: we will put it into the explanatory notes. We will give further clarity in those notes.

Amendment 32 could cause confusion about whether the ban may or may not be breached as a result of the political and moral disapproval of individuals who make decisions on behalf of a public authority. The drafting of the Bill clarifies the position: where an individual makes a decision on behalf of a public authority, that will be seen as the public authority’s decision, so the public authority will be subject to enforcement action, not the individual.

The Bill needs to be clear that decisions that involve disapproval by individuals who make a decision on behalf of a public authority are in scope; otherwise, it would bring into doubt situations such as a council voting for a local authority to conduct a boycott or indeed any decision taken by a group that makes decisions for a public authority, such as a board or committee. The ban would be ineffective and easy to circumvent if such decisions were not covered.

It might also be helpful if I explain how the ban affects individuals. Anyone acting in an individual capacity is not caught by the ban in clause 4 on making a statement of intent to boycott or divest, unless the individual is making that statement on behalf of the public authority. I gave the example of the councillor. I know that that has been a point of confusion for members of the Committee so, as I said, I will clarify the point in the Bill’s explanatory notes.

In addition, when an individual or groups of individuals make a decision that is caught by clause 1, or a statement on behalf of a public authority caught by clause 4, the individuals are not personally liable: the public authority is. The public authority would be the subject of any enforcement or court action. In evidence to the Committee, Dr Alan Mendoza confirmed that that position is laid out clearly in the legislation and that the European Court of Human Rights would agree. The Government remain strongly committed to the UK’s long and proud tradition of free speech and to article 10 of the European convention on human rights.

I hope that that reassures the Committee, especially in the light of the additions to the Bill’s explanatory notes. The scope of the Bill is strictly limited to the actions of public authorities, and only affects individuals when they make statements or take action on behalf of public authorities. Therefore, for the reasons that I have set out, I respectfully request that the amendments be withdrawn.

[Ms Qaisar]

Amendments 22, 31, 23 and 32, tabled by my hon. Friend the Member for Glasgow South West and me, include probing elements, as well as changes to the legislation, because on the face of it the Bill simply does not make sense. As I said in my opening statement, that is not just my opinion, but the opinion of various different organisations in written and oral evidence. The Bill is so poorly drafted.

The Minister took a lot of time to talk about clause 4, but at this point I want to concentrate on clause 1; we will come to clause 4 later. The Bill will have an impact on the autonomy of local authorities. For years, indeed for decades, local authorities and local councillors at the very local level—I keep using “local”, because that is vital—have played a role in the protection and promotion of human rights. It is important for that to be protected.

The Bill, if passed, will have an impact not only on local authorities but on universities, which is vital because they play an essential role: they gather knowledge, free from interference, to educate people in skills and in thinking critically and independently. Some of my amendments to later provisions in the Bill come back to the importance of universities and how the Bill contradicts previous legislation introduced by the UK Government.

The Bill is, as I say, drafted poorly. I still do not understand the part of the Bill that talks about “a reasonable observer”. That is why we tabled the probing amendment 31. These are subjective, not objective tests. The Minister essentially needs to go back to the drawing board. The SNP is looking to divide the Committee on amendment 22.

Question put, That the amendment be made.

--- Later in debate ---

[Ms Qaisar]

I beg to move amendment 30, in clause 2, page 2, line 4, at end insert—

“(1A) But section 1 does not apply to decisions of Scottish Ministers.”

This amendment would remove decisions of Scottish Ministers from the scope of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 15, in clause 3, page 2, line 28, leave out paragraph (b).

This amendment, and Amendments 16 and 17, seek to remove Scotland from the extent of this Bill.

Amendment 16, in clause 17, page 10, line 38, leave out “Scotland”.

See explanatory statement for Amendment 15.

Amendment 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.”

Amendment 17, in clause 17, page 11, line 19, leave out “Scotland”.

See explanatory statement for Amendment 15.

Clause stand part.

[Ms Qaisar]

Scotland has its own legislative framework under the Procurement Reform (Scotland) Act 2014, along with associated regulations and guidance. That legislative framework places duties on certain contracting authorities to demonstrate how the social, economic and environmental aims of procurement have been considered in a consistent manner, as required by the sustainable procurement duty under the Act. For example, a contracting authority is required to include a statement of its general policies on the procurement of fairly and ethically traded goods and services in its procurement strategy.

I have tabled a number of amendments in this group. Essentially, they can be summed up by this: Westminster might have the powers of reserved matters, but Scotland is a devolved nation. Scotland has its own Parliament and its own Government; it is not for Westminster to turn around and tell Scotland what she should do, because that Parliament was elected democratically by the people of Scotland. Devolved Governments, including the Scottish Government, make their own public procurement decisions. That is one manner in which they can encourage companies to behave in a way that is in line with human rights, including labour rights and environmental concerns.

Efforts made by devolved nations will be hampered by this Bill. We heard that last week from the Scottish Trades Union Congress. During evidence, Roz Foyer spoke about the Fair Work First scheme, which gives guidance for organisations seeking an award through public sector grants, contracts and other funding. Essentially, it is the Scottish Government’s approach to contracting. Scotland does not have the power to legislate on employment law—yet—but through programmes such as Fair Work First we have wide-ranging guidance and a number of benchmarks that contractors are held to in order to receive public money.

As I say, Scotland cannot implement laws in relation to employment, but it uses the right to implement and use money accordingly. Roz Foyer ended her point with something absolutely crucial. She said:

“I believe that is a very legitimate way to create a landscape of better employment rights and good practice, both domestically and internationally, and that work would be severely undermined by the current proposals.”––[Official Report, Economic Activity of Public Bodies (Overseas Matters) Public Bill Committee, 5 September 2023; c. 71, Q113.]

It is unprecedented that the Bill would prohibit Scottish Government Ministers from taking moral or political objections towards foreign state conducts into account when making procurement and investment decisions. A key concern is that the Bill alters the Executive competence of Scottish Government Ministers. Therefore, earlier this year, they lodged a legislative consent memorandum within the Scottish Parliament, as the Minister knows. Scottish Ministers have the ability, to the extent permitted by procurement legislation, to consider the country or territorial origin or other territorial considerations in a way that indicates political or moral disapproval of a foreign state when making decisions about procurement or investment.

An example, which the memorandum talks about, is the position taken by Scottish Government Ministers in relation to procuring goods from Russian suppliers following the invasion of Ukraine. That was the correct thing to do. If the Bill passes it will restrict, if not entirely remove, that ability and alter the executive competence of Scottish Ministers.

As we know, clause 4, which I will refer to later on, would make it unlawful for Scottish Ministers to even state that they would have acted differently if it were not for the provisions of the Bill. The Scottish Government’s memorandum outlines three principal decisions as to why they should not give their consent to the Bill, and I want to outline them. When the Committee hears the Scottish Government’s rationale, our reasons for tabling the amendments will be clear.

First, can the Minister provide some clarity? It is not clear what problem the UK Government seek to address by including Scottish Ministers within the scope of the Bill. [Interruption.] Hear me out. I know the Minister will probably turn around and say, “Scottish Government Ministers have to listen to the UK Government because we have reserved powers on matters of foreign policy.” However, we struggle to understand this. The Scottish Government have always acted responsibly and in line with the UK’s international commitments. Scotland is not an independent country—yet—so the argument that a decision of the Scottish Government in relation to a particular procurement or investment process may be mistaken by overseas Governments for an alternative UK foreign policy lacks credibility. It just does not make sense.

When I join international delegations, I will talk about the good work that the SNP’s Scottish Government are doing. For example, people are quite interested in the baby box—a groundbreaking piece of policy that gives every single baby born in Scotland a box. Please bear with me, Chair, as this will come back to the Bill. When I am abroad and I talk to people about the SNP’s baby box, they understand that the legislation is from Scotland; it is not UK-wide. People might not understand the intricacies of devolved and reserved matters—as a former modern studies teacher I take great pride in explaining this to people—but they do understand that foreign policy is set by the UK Government. It is not clear what the Bill seeks to address by including Scottish Government Ministers.

Secondly, the Scottish Government take a value-based approach to international engagement. I know that because up until my promotion to SNP levelling-up spokesperson last week, I led on international development for the SNP—I will give myself that shout-out. [Hon. Members: “Hear, hear!”] I thank hon. Members. I know that at the heart of the Scottish Government, international activity creates opportunity at home, broadens horizons, attracts high-quality investment and ultimately benefits the people of Scotland. While the Scottish Government will always meet the obligations placed upon them by international law and treaties, people in Scotland quite rightly expect that decisions should not be made in an ethical or moral vacuum.

Thirdly, the Scottish Government memorandum talks a lot about clause 4 and I will speak about that later. However, I would be interested to hear from the Minister about this. I still do not understand, as my hon. Friend the Member for Glasgow South West said, what a Scottish Government Minister needs to say when on television or giving a quote to a newspaper. Do they have to turn around and say, “I am talking as a Scottish Government Minister”, “I am talking as an SNP MSP,” or “I am talking as an individual”? We need some clarity from the Minister on that.

The Scottish Government, of course, recommended that the Scottish Parliament does not give consent to the Bill. I urge the Minister to take heed. My amendments are all in regard to Scotland and understanding why Scotland has been included in this. Can the Minister take heed and pay attention to that?

[Chris Stephens]

It gives me great pleasure to follow my hon. Friend the Member for Airdrie and Shotts, who is taking over as the levelling-up spokesperson after this Committee. I want to support her amendments for several reasons. First, procurement is devolved to the Scottish Parliament. That is clear, as we heard in the evidence sessions in the questions asked not just by myself but by my Labour colleagues around the effects of procurement in the devolved Administrations.

There is real concern that the Bill seems to override the devolved Parliaments in this area. The devolved Parliaments clearly and correctly suggest that they would want to use their procurement in an ethical way. The problem that we have, of course, is that witness after witness was saying, and those speaking on behalf of the Bill were saying, “It’s up to the Westminster Government to dictate foreign policy.” Well, that gets us only so far. Every local authority that I can recall in Scotland in the lead-up to the Iraq war had a vote on whether it supported the war. Will this Bill seek to stop that sort of activity? Witnesses said last week that this would have stopped what Glasgow District Council did in 1981 in relation to South Africa.

Half a billion years ago, the land masses now known as Scotland and England joined up physically. They are playing a football match tonight. I am quite nervous because Scotland do not do too well against the lesser nations when it comes to football, as we know, but we will see what happens tonight.

We have to be very clear here. The Scottish Parliament was reconvened in 1999. Devolution was approved overwhelmingly by the people of Scotland. I do not think that the people of Scotland will take too kindly to a Westminster Government who seek to impinge on the devolved matters and devolved legislation of the Scottish Parliament.

--- Later in debate ---

[Felicity Buchan]

I shall begin by addressing amendments 15, 16 and 17. The amendments would remove references in clause 17 that extend the Bill to Scotland. The amendments also remove a reference to Scotland in clause 3. Scottish Ministers are currently named on the face of the Bill so that they can only be exempted from the ban via a change to primary legislation. The amendment would allow Scottish Ministers to be exempted from the ban via secondary legislation.

The Bill’s provisions apply to all areas of the UK. The provisions apply to all public authorities, as defined in section 6 of the Human Rights Act 1998, across England and Wales, Scotland and Northern Ireland. First, it is absolutely essential that the Bill extends to public authorities across the entirety of the UK. Foreign policy is a reserved matter. The Bill ensures that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the United Kingdom Government.

Secondly, as we heard extensively in the oral evidence sessions, boycott, divestment and sanctions policies are divisive and undermine community cohesion. We have seen examples of actual or attempted BDS activity in public authorities in England, Wales, Scotland and Northern Ireland. It is crucial therefore that the legislation applies across the UK to prevent such divisive behaviour in any of our communities.

[Ms Qaisar]

I thank the Minister for giving way; she is being very generous with her time. She has set out that UK foreign policy is a reserved competency. I am interested to seek clarity and understanding on that, as I cannot remember a time when the Scottish Government have taken a different stance to the UK Government on UK foreign policy. Is the Minister able to outline one of those stances?

--- Later in debate ---

[Felicity Buchan]

My apologies, Sir George; I meant that I wanted to correct the interpretation of the hon. Member for Caerphilly of what I said. The measure will extend and apply to Northern Ireland by virtue of the fact that this is a foreign policy and it is a reserved matter, but we want to work to get the legislative consent motion, which might take time in Northern Ireland because it will require the Assembly to be in place.

[Ms Qaisar]

We have all spoken about how foreign policy is reserved, but public procurement and the use of taxpayers’ money is a devolved competence. It is completely correct that Northern Ireland, Wales and Scotland attempt to use the leverage of public procurement to incentivise companies to behave sustainably with regard to human rights, labour rights and the environment. That is correct and right.

I am a little confused by the Minister’s contribution and would appreciate clarification. I made an intervention and she was very generous with her time. My question was whether she was able to explain a time when the Scottish Government had not been in line with the UK Government on foreign policy. As far as I am aware, the Scottish Government have always acted responsibly and in line with the UK’s international commitments. Why, therefore, have Scottish Ministers been included on the face of the Bill when the Minister is unable to explain that point?

I also seek clarification on the Minister’s response to my hon. Friend the Member for Glasgow South West. My hon. Friend raised the point—we have spoken quite a bit about Glasgow City Council today—that after renaming the street and inviting Nelson Mandela to come and speak, would they have been able to disinvest? As far as I understood her contribution, the Bill would have stopped disinvestment in South Africa. I would appreciate clarification from the Minister, if she can give it. I would like to divide the Committee on my amendment.

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

Anum Qaisar Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

Related prohibition on statements

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

I beg to move amendment 24, in clause 4, page 3, line 24, at end insert—

“(4) Nothing in this section requires any act or omission that conflicts with the rights and freedoms guaranteed under the Human Rights Act 1998.”

This amendment would ensure that any act or omission under the “gagging clause” in clause 4 would not conflict with the Human Rights Act 1998 (HRA), in particular, Article 10 (right to freedom of expression) and Article 9 (freedom of thought, conscience and religion) of the ECHR as incorporated by the HRA.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Ms Qaisar]

Clause 4 is simply unworkable and not practical. During my contribution, I will outline the rationale for my amendment, but I wish to put on record that the SNP will not support the clause.

Amendment 24 inserts the proposed words to ensure that any act or omission under the clause would not conflict with the Human Rights Act 1998 and particularly with article 10 of the European convention on human rights, on freedom of expression, and article 9, on freedom of thought, conscience and religion, as incorporated by the HRA. Freedom of expression has long been seen as a cornerstone of democracy and the foundation for the rule of law. The ECHR gives political speech a high form of protection because of its crucial role in democracy. Any attempt to make it unlawful for public officials to be influenced by the political speech of others, or even to appear to have been so influenced, undermines freedom of expression. Public officials, in accordance with international law, have the qualified right to freedom of expression. That can be denied only under tightly prescribed conditions, which are not met in this legislation.

Amnesty International has outlined that the clause puts the UK at risk of breaking article 10 of the ECHR, which is protected under the Human Rights Act 1998. The Bill sets out a quasi-judicial review process and an enforcement regime that can be used to prevent or punish the making of statements. Both of those would amount to an interference with article 10 rights, in so far as they do not meet the necessity test. The ECHR considers that interference with the right to freedom of expression may entail a wide variety of measures, such as a formality, condition, restriction or penalty.

That raises the question of whether the proposed legislation’s interference with article 10 rights can be justified as being for a legitimate aim, which is defined in the ECHR as

“in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

None of those aims appears to apply in this case. Although the Government state in their impact assessment that the Bill is intended to

“prevent divisive behaviour that undermines community cohesion”,

they provide no specific examples, stating:

“The number of actual or attempted boycotts or divestments inconsistent with UK foreign policy is relatively low”.

In that context, interference with free speech appears to be disproportionate, given the importance of this right.

Clause 4 has baffled me. I will present the Minister with a hypothetical scenario, and I would appreciate clarification of it, if she would indulge me. Let us say, for argument’s sake, that a company based in Xinjiang that is complicit in poor factory working conditions is line for a contract with the Scottish Government. Non-governmental organisations have raised human rights concerns and, unrelated to that, the Minister in charge of procurement is invited on to “Question Time” that night, where a member of the public asks about the company. In my understanding of the Bill—I would appreciate clarification on this—the Minister cannot say the company will not be awarded the contract because of its poor factory working conditions. That is because, under the Bill, Ministers cannot make decisions based on territories, and the Scottish Government Minister would not be allowed to say that their choice would have been not to award the contract to that Xinjiang-based company—they might want to say that, but they would be unable to do so because of the Economic Activity of Public Bodies (Overseas Matters) Act. However, the Minister could say that the contract would not be awarded to a company based in China because of general concerns about poor human rights records, not specific to Xinjiang.

Something else baffled me. That question was asked in a public forum, so let us say for argument’s sake that an MP and a councillor are also on the panel. My understanding is that, even if the Bill was clear that “decision maker” referred only to a public authority, its wider chilling effect is likely to engage article 10. That is because individuals who might influence the decision maker’s position would be heavily deterred from expressing views that could then be interpreted as influencing the decision maker based on political or moral disapproval.

--- Later in debate ---

[Felicity Buchan]

I shall start by explaining why we do not support amendment 24, and I will then explain why we feel strongly that clause 4 needs to stand part of the Bill. I will address a few of the specific questions, but I will do so at the end, because I think it is important that hon. Members see the logical flow of the argument.

Amendment 24 seeks to ensure that none of the provisions in clause 4 will conflict with the Human Rights Act 1998. This amendment is unnecessary, as the Government’s assessment is that all the provisions in the Bill are consistent with the Human Rights Act and the European convention on human rights, including article 10, the right to freedom of expression.

The purpose of the European convention on human rights, which the Human Rights Act implemented into domestic law, is to regulate the relationship between the state and the individual and specifically to protect private persons’ fundamental rights from potential interference by the state. This includes private persons’ article 10 right to freedom of expression. Public authorities, which form part of the state or perform the state’s functions, are the potential perpetrators of ECHR violations and therefore do not have these rights. Public authorities do not have the rights; the rights are to protect private individuals and private bodies against state interference. This assessment was supported by several of the witnesses that the Committee heard from last week, and that is why we believe that the amendment is unnecessary.

Clause 4 prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by this Bill. That includes statements indicating that the public body would have acted differently were the legislation not in place. It is important that we focus on public bodies, because this does not restrict the rights of individuals. We talked earlier about the difference, and the simplest way to express that is that if an individual is speaking on their own behalf, they are speaking as a private individual. However, if I say that I am speaking on behalf of my university or my local authority, then I speak on the behalf of a public body.

Academic freedom has been mentioned. If I am a university professor, which I am highly unlikely ever to be, I can say whatever I want. If, however, I stand up and say, “I, Felicity Buchan, speaking on behalf of Imperial College,” which is in my constituency, that is representing the view of Imperial College, as opposed to that of Felicity Buchan.

[Ms Qaisar]

The Minister is being generous with her time. If the councillor in the hypothetical scenario I gave wanted to make a point, would he have to say, “I am Joe Bloggs. I just so happen to be a councillor. I just so happen to be the leader of the council,” or can he say, “I am a councillor Joe Bloggs and I just so happen to be the leader of the council.” I still do not understand.

[Felicity Buchan]

I will go into detail on it. Give me one minute and I will go through all those scenarios.

--- Later in debate ---

[Felicity Buchan]

On the point about what a newspaper may or may not infer, clearly for there to be enforcement it needs to be proved. We will go on to talk about enforcement later, but I think there is a clear distinction between stating something in a personal capacity and representing one’s institution. On that basis, I recommend that the amendment be rejected and that clause 4 stand part of the Bill.

[Ms Qaisar]

I thank hon. Members for all their comments. I agree with Opposition Members that clause 4 needs serious reworking or simply removal from the Bill. As has been mentioned, and as we heard in our evidence sessions, the clause marks a dangerous attack on the article 10 right to freedom of expression set out in the Human Rights Act. We must ensure that the Bill does not impede the rights of individuals freely to express their views.

I am sorry, but I am not reassured by the comments in the impact assessment and from the Minister that the Bill requires such strong provisions preventing freedom of expression. I am surprised that the Government have sought to include such provisions in the Bill. They seem to have failed to acknowledge that the clause has the potential to engage individuals’ human rights, as is proven by the lack of a human rights memorandum to accompany the legislation. I remind Government Members that this Government claim to be a bastion of free speech.

[Jacob Young (Redcar) (Con)]

Hear, hear.

[Ms Qaisar]

The hon. Member says, “Hear, hear,” yet I imagine that he is about to vote for a clause that restricts free speech. I am somewhat perplexed.

This Government have passed legislation designed to protect academic freedom and have even appointed a supposed free speech tsar, yet the Bill seems to go against that. Clause 4 has the potential to shut down academic debate and limit academic freedom, which is integral to the higher education sector across all four nations. I am not convinced whatsoever by this clause. I will push amendment 24 to a vote, and I will vote against the clause in its entirety.

Question put, That the amendment be made.

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

Anum Qaisar Excerpts

Committee stage
Thursday 14th September 2023 Public Bill Committees

[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

I beg to move amendment 33, in clause 7, page 5, line 39, leave out from “legislation” to end of line 41.

This amendment is to probe the way the legislation appears to “qualify” the data protection legislation.

It is a pleasure to serve under your chairmanship, Dame Caroline.

Like previous clauses that we have discussed, clause 7 is poorly drafted. It hands enforcement authorities powers that risk infringing on civil liberties such as the right to a private life. The clause allows an enforcement authority to compel a person suspected of contravening a ban to provide information, including personal information about people involved with a decision. It is clear that the intention is to prevent a public body from contravening clause 4, the so-called gagging clause. However, the broadness of the clause risks casting too wide a net and infringing on personal data. My amendment 33 seeks clarity from the Government as to how the clause will interact with existing data protection legislation.

Data law exists to protect people’s privacy and data, but the Bill is confusingly drafted. In its current form, the clause could be interpreted as implying that existing data protection legislation is to be read in line with the Bill, rather than the other way around. That obviously raises issues about an individual’s right to data privacy. The circularity of the drafting could potentially mean information disclosure obligations superseding data protection legislation. As has been raised numerous times under other clauses, the drafting clearly suggests that little thought has gone into the powers granted to enforcement authorities. It is unclear whether any assessment has taken place of the legal necessity of the powers or of whether they are proportionate under the General Data Protection Regulation and the Data Protection Act 2018.

The drafting of clause 7(8) is particularly concerning. It provides that disclosure of information under the provisions will not breach

“any obligation of confidence owed by the person in respect of the information, or…any other restriction on the disclosure of information (however imposed).”

That is such a broad definition that it potentially includes everything from contractual restrictions and court orders to legal professional privilege and even statutory restrictions on information disclosures.

Many people have raised these concerns, as we know from our evidence sessions last week and from written submissions. I am sure that granting such expansive powers was not the Government’s intention in drafting the clause. I hope that the Minister will provide an explanation of why they have drafted the legislation so confusingly in respect of data protection and why they are granting such expansive powers to enforcement authorities.

The clause has the potential to allow a severe intrusion on an individual’s right to privacy under article 8 of the European convention on human rights, which provides the right to a private life. The grounds on which information can be requested are very wide: someone would need merely to be suspected of being in the process of potentially making a prohibited decision or statement to be required to hand over information. That is compounded by the requirement to provide any information that is

“likely to be useful to the enforcement authority”.

It would be beneficial if the Government explained what kind of information could be requested through an information notice.

Amendment 33 is a probing amendment, so I will not push it to a vote, but I hope that the Government will provide further detail on what evidence individuals will have to provide when issued with an information notice, as well as looking again at the broad powers granted under the clause.

[Felicity Buchan]

Amendment 33 would remove the part of clause 7 that refers to compliance with data protection legislation, specifically the requirement that the provisions of the clause should be taken into account when determining whether the provision of information would contravene data protection legislation. Importantly, an information notice does not require the provision of information if this would be in contravention of the data protection legislation.

The clause provides a lawful basis for sharing information. This is a standard drafting mechanism that respects the principles of data protection; it does not alter the principles of data protection. As I have already set out, the Bill is by no means unique in including this drafting, which features in various pieces of existing legislation, such as the Building Safety Act 2022 and the Agriculture Act 2020. For those reasons, I ask the hon. Member for Airdrie and Shotts to withdraw the amendment.

[Ms Qaisar]

I thank the Minister for her response, but I do not think it goes far enough in addressing the concerns that I and other Members have raised. I heard what she said, and I understand from her previous contributions that some additions will be made to the explanatory notes. I am slightly concerned that, when they made concessions on clause 7 and others, the Government said that there will simply be additions to the explanatory notes, rather than anything on the face of the Bill. I hope the Minister will go back and seriously consider how to tighten up the language in the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.

Clause 9

Monetary penalties: power

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

[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.