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.