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.