Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Tuesday 14th May 2024 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

33: Clause 4, page 3, line 18, leave out paragraph (b)
Member’s explanatory statement
This amendment would remove the prohibition on a person publishing a statement indicating that they would have acted in a way prohibited by Clause 1 if it were legal to do so.

[Baroness Chapman of Darlington (Lab)]

My Lords, I rise to move this amendment with the permission of the noble Lord, Lord Willetts, who, owing to the delay to the start of today’s deliberations, is unavoidably detained at an event being held, I believe, in his honour, so it would have been incredibly rude for him not to be present. Given that I think we are of one mind on this issue around Clause 4, I am very happy to speak to the amendment on his behalf.

There is much to complain about with this Bill, as we have heard in every group that we have discussed so far, but to my mind Clause 4 has to be one of the most egregious, nonsensical and unnecessary clauses in the entire Bill and, for that matter, pretty much any Bill that I have ever been involved with bringing through either House.

When I first read this clause—which talks about statements that a public body may make with regard to whether it will be taking a decision on BDS— I thought, “Ah, what the Government are trying to do here is to stop a public body making a statement that could be interpreted as a threat to commit to a boycott, or to divest”. But that is not right. This is a prohibition on making a statement that you are not going to enter into any kind of divestment or boycott decision. This is extremely odd.

I will give what might be a ridiculous example, but then I think this is a ridiculous clause; I will use it to explain to noble Lords just how crazy this is. The Minister is a stylish lady. I saw her when she walked in tonight and I thought she looked good. She has a very nice handbag with her this evening. It is very smart. I might have thought to myself, “I wouldn’t mind having that handbag away; I think I’ve got an outfit that it could go with”. But I will not do that to the Minister, because it would be a crime.

I can stand here and say that I am not going to take her handbag away with me tonight because it would be a crime and would, quite rightly, cause me to be punished, perhaps lose my job, embarrass the kids and all the rest of it; I am not going to do that to the Minister. I can say that; it is perfectly fine for me to say that about the crime of theft and depriving the Minister of her smart handbag. I can stand here, or anywhere I like, and make that statement. I am not threatening to do anything or saying that I intend to take away her handbag. I am saying that I am not going to remove her handbag because that would be a crime. That is fine for me to say.

I am not able to make an equivalent statement about divestments or boycotts if I am a public body under Clause 4. That is over the top, unnecessary and something that I cannot think we would ever apply to any other crime. We do not apply this to terrorism, child abuse or murder but, for some reason, the Government think it is necessary to put in this Bill that a public body cannot make a statement saying that it will not breach the terms of the Bill. That is extraordinary.

Further, it cannot even be the case under Clause 4 that a public body should be likely to make such a statement that it intends not to break the law. I have never seen anything like this in a piece of legislation anywhere. I am very curious as to the thinking behind it. I wonder whether the Minister could point us in the direction of an equivalent clause in any other Bill, from any period in the history of this fine country. To me, this goes beyond a gagging clause, which I think it has been called. This is thought police. This is saying that, even if it is suspected that a public body is likely to make such a statement, it can be subject to an information notice, to penalties and to unnecessary intrusion. I just do not see why it is needed, even if we were to accept— and we do not—that the approach the Government are taking in the Bill as a whole would be successful.

The last time we met in Committee, the noble Lord, Lord Warner, raised some interesting points about Clause 4. He made a very good speech, but on Clause 4 he was asking the Minister about her statement of compliance with ECHR. It was his view that she may have been misled or ill advised, or that it may not have been correct for her to sign off on compliance, particularly with Clause 4 in mind. He committed to go away and consider that, and I am interested to hear what the noble Lord, Lord Warner, might have to say this evening. I suspect that he may have read the Constitution Committee report that advises that the House may wish to consider whether Clause 4 should be removed from the Bill. I think the committee has a very good point, and we are very much of the mind that Clause 4 should be removed from the Bill. The noble Lord, Lord Collins, has tabled his intention that Clause 4 should not stand part of the Bill.

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[Baroness Chapman of Darlington (Lab)]

My Lords, we are not talking about a statement of intent to boycott; we are talking about a statement that you would have done something but you do not intend to do it. That is the point that we are trying to make.

[Baroness Neville-Rolfe (Con)]

I think that it is necessary to make these points within the framework of the Bill.

I will move on and explain Clause 4, which, in its entirety, is an instrumental part of the Bill. It prohibits public bodies from publishing statements indicating that they intend to engage in activity prohibited by the Bill. That includes statements indicating that the public body would have acted differently if the legislation had not been in place.

I will deal directly with some points that I feel are misconceptions. The clause will not affect the statements of individuals, unless they are speaking as or on behalf of a public authority. The noble Baroness, Lady Chapman, is not speaking for a public authority in her colourful example; I assure her that she would not be in breach of the ban if she were making a statement of intent to boycott. Even when an individual is speaking on behalf of a public authority, the ban applies only to the public authority itself and there is no personal liability for the individual. Thos includes councillors, to answer the question raised by the noble Lord, Lord Davies of Brixton. For that reason, I reiterate—

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[Baroness Neville-Rolfe (Con)]

I am afraid that I am not familiar with that case, but I take the right reverend Prelate’s point. The way I have described this shows that in fact this is limited in intent; free speech is possible in a personal capacity. I will come on to say a little more about that and about decision-makers, because I know that we need to clear up those points and I am conscious of time.

The noble Baroness, Lady Chapman, highlighted that Ministers in the Scottish Government would be captured by this provision. As I have explained, as Ministers in the Scottish Government are public authorities for the purpose of human rights, they do not have ECHR protections in their public functions. It is clearly right that this provision should apply to Scottish Ministers to ensure that communities in Scotland are protected from these divisive statements, and foreign policy is a reserved matter. Additionally, Clause 1 applies only in relation to procurement and investment decisions in the exercise of public functions. Therefore, Clause 4 would not apply to statements made by Scottish Ministers about how they tend to act in their private lives.

[Baroness Chapman of Darlington (Lab)]

Can we be absolutely crystal clear on this? The Government are arguing that a Minister in Scotland, the Mayor of Greater Manchester, Andy Burnham, or the First Ministers of Wales or Northern Ireland could not legally make a statement saying, on behalf of the public authorities they are elected to lead, that they do not intend to break the law because they do not break the law. Clause 4 would prevent them doing that.

[Baroness Neville-Rolfe (Con)]

I am not sure that is right. I will seek advice.

[Baroness Chapman of Darlington (Lab)]

It is important.

[Baroness Neville-Rolfe (Con)]

It may be important, and therefore it is all the more important that the noble Baroness’s question is answered fully and accurately. I have made it clear in answer to the noble Lord, Lord Beith, that as only public authorities are subject to Clause 1, Clause 4 is strictly limited to the actions of public authorities and therefore not individuals associated with public authorities.

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[Baroness Neville-Rolfe (Con)]

As the noble Lord knows, the Bill aims to improve the situation with social cohesion. I note what he said, but we have seen examples of councils, such as Islington, passing motions in opposition to the Bill alongside foreign policy statements about Israel and other countries. While this might not be a breach of the ban, it demonstrates a strong interest in public authorities engaging in BDS campaigns. It could demonstrate that the Bill is already be having its intended effect of preventing public authorities making divisive statements.

The point is that, overall, Clause 4 supports the main aims of the Bill in ensuring that the UK speaks with one voice internationally and has one foreign policy agenda, and that public bodies do not introduce policies in that area that risk dividing communities at this difficult time. Accordingly, for this evening, I kindly ask the noble Baroness to withdraw her amendment.

[Baroness Chapman of Darlington (Lab)]

My Lords, this has been a helpful debate, if somewhat frustrating at times. I do not think that it is good enough to be reminded of social cohesion as a way of trying to entice us into supporting this measure. We all want to work hard to improve social cohesion where there are issues, and I know that the Minister would accept that that is our intention too.

There are fundamental problems with this clause. The Minister herself has said that she is unable to answer some quite basic questions that we have asked, and not for the first time this evening—we have asked these questions before. We have used different examples to try to tease out the answers, but the principal question is the same: who will be subject to this measure and what might the effect of that be? We still do not know the answer to that.

[Baroness Neville-Rolfe (Con)]

With respect to the noble Baroness, I have answered the large majority of the questions, but I said that I would take away the underlying question that she is enunciating.

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[Baroness Chapman of Darlington (Lab)]

I acknowledge that the Minister has done her best to answer the position this evening. But I remember a meeting that we had before Second Reading and asking her about this example of a council leader, which we heard again tonight put very well by the noble Lord, Lord Beith—I think the Explanatory Notes had been amended at that point. We still do not know the answer to that. The officials who were with her said that they would take it away and come back with an answer, but there has been no answer tonight. The Minister will understand our frustration a little.

The noble Baroness, Lady Noakes—what a soldier. She shows up and does this for the Government, night after night, but, my goodness, how unpersuasive she was—she is normally very persuasive and I can normally see where she is coming from. She is doing sterling work, I am sure, but she has not provided us with the answers that we need. Saying that this is about social cohesion will not wash.

Should the Bill pass, should this clause be included, social cohesion could be damaged. What social cohesion needs is communication, open expression of where people are coming from, and relationships of trust to be built up. You cannot build relationships of trust among community leaders, whether they are councillors, leaders of combined authorities or Ministers in devolved Administrations, if they feel, and are said to feel, unable to express their true positions. That is not a situation we should be content to tolerate in this country.

It would be helpful if the Minister could commit to writing to noble Lords about the issues concerning councillors; but they apply to other elected officials too, as we have discussed. If we could have that letter before Report, that would be incredibly helpful.

I beg leave to withdraw my amendment.

Amendment 33 withdrawn.