Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Fox of Buckley Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, as others have explained so well, this Bill presents a dilemma. I have long argued that the BDS campaign has seeded a culture of normalising anti-Semitism. The noble Lord, Lord Davies, and I will have to disagree on what that definition might be; however, one of the points about democracy that I agree with him on is that we need that kind of debate. The problem I have is that BDS is an entirely illiberal and censorious boycott campaign; but, on the other hand, this legislation, which aims to ban such boycotts, is also illiberal and censorious. So, what to do?

In the broadest terms, the Bill’s premise could sanction a dangerous trend of government determining in law which political campaigns are legitimate and which are not. I found the Minister’s emphasis on public authorities all speaking with one voice on foreign policy more scary than reassuring. Perhaps she might consider just the smidgen of a possibility that one day, the Government are in opposition and are involved with public bodies that disagree with official foreign policy. It is hard to know whether the Bill would catch them then.

However, if the aim is to rein in public institutions from dabbling in contentious moral decisions beyond the scope of their core responsibilities, which Michael Gove certainly seemed to imply, then we should recognise that, ironically, one reason why investment and procurement strategies have been politicised in recent years is government-backed, top-down directives. Just look at the way that pursuing ESG targets and adopting divisive EDI diversity criteria have distorted investment and procurement decisions, and not all for the good. By and large, therefore, the Government should stop interfering in what is and is not invested in by autonomous public bodies.

Beyond a concern about the threat to the autonomy of, for example, universities, councils and arts organisations, which was well explained by the noble Lord, Lord Willetts, and many others, I just cannot see how the Bill can avoid stifling democratic debate. We have heard powerful speeches, especially those critiquing Clause 4 as a gagging clause. However, the provision that prohibits vice-chancellors, chief execs of arts organisations and council leaders from saying that they would support the boycott if it were lawful is in fact Orwellian—and that is not overusing the word. Is it not dangerous to discourage leaders of public bodies from explaining their decision-making processes? Surely it is in the public interest that we know the pros and cons of financial investments, or why they might want to boycott, and so on.

Unlike some, therefore, I am not somebody who goes along with a rather unpleasant cynicism about the Government’s motives. I am happy to accept that the Bill is being put forward in good faith and that it is an attempt to tackle one of the sources of anti-Jewish hatred—BDS-style boycotts. However, despite the intention, clamping down on open discussion, which so much of the Bill does, will make it more difficult to tackle anti-Semitic racism in the public sphere.

Those of us who oppose BDS should hold firm that it is we—or it should be—who are on the side of democratic free speech. In contrast, BDS is a boycott campaign whose very essence is to use regressive censorship tactics to isolate Israel economically and culturally. However, note that this is not about shaming Israel or embarrassing it into taking a different policy decision. We have heard a lot in today’s debate about the past boycott of South Africa—maybe it is an age thing—but that was aimed at ridding South Africa of apartheid, not of ridding the world of South Africa. The BDS movement, however, aims to rid the world of a Zionist state: that is, to eradicate Israel. As people have called for evidence, that is what its founders and much of its literature say.

I think I get why the Government might focus on trying to find a way of curtailing BDS. Today’s boycott culture is pretty grim. I recently encountered those abusive, rather vicious protests outside Zara and McDonald’s, which I was told not to enter and buy a burger from, as it would mean that I was endorsing genocide. It is scary that so many of those young protesters have no qualms about mirroring the 1930s Nazi tactic of blocking Jewish services and businesses with their “Don’t buy from the Jews” slogans. BDS campaigns have certainly created a boycott culture, with anyone associated with Israel being treated in a cavalier, cruel and prejudicial way. There was the terrible incident the other day, when the young Israeli swimming champion was booed and jeered; and Gary Lineker, a leading BBC pundit, casually went along with the BDS demand to kick the Israel football team out of FIFA.

I am all for a robust response to this ugly mood, but this proposed legislation follows a worrying trend: creating criminalising laws as a substitute for political courage in taking on contemporary challenges. I therefore ask the Minister: is the problem the Government seek to tackle a plethora of university senates using BDS schemes to avoid investing in Israel? Hardly. However, there is the huge problem of a spike in anti-Semitic abuse targeting Jewish students—as described so vividly by the noble Lord, Lord Mann—and, by the way, of leaders of those public institutions often looking away. Consider the shameful case of a Birmingham University Jewish chaplain being driven off campus and into hiding after returning from military service fighting Hamas. Beyond these visceral attacks, let us not forget that too many in academia have cultivated the intellectual justification for anti-Jewish attitudes among the young by propagating decolonisation ideology and critical race theory—branding Jews as the embodiment of white privilege and Israel as the epitome of a colonial settler state, and therefore fair game for righteous hatred.

How will the Bill’s restrictions deal with that or help arts organisations tackle pernicious cultural boycotts such as the cancelling of Israeli artists, be it the London theatre that pulled the plug on the Jewish Film Festival, the cancellation of the Israeli hip-hop opera at the Edinburgh Fringe, or the bullying of high-profile artists who have the temerity to announce that they will gig in Tel Aviv? The Bill will not make an iota of difference.

I finish with the story of the Jewish nightclub owner who closed down his nightclub last week, having received a package addressed “Zionist child killer” that contained children’s clothes drenched in fake blood. However, the final straw was the threat to boycott the club. The Bill will make no difference.

By the way, I am delighted to have found so many free speech allies in this House; suddenly, everybody is on the side of free speech. I have not experienced that in the years that I have been here—only in defending BDS. None the less, I do not want to betray that free speech by agreeing with the Government that we should clamp down on it just because I want to fight anti-Semitism.

Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Fox of Buckley Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I have problems with all the amendments in this group. Amendment 1 in the name of the noble Lord, Lord Wallace of Saltaire, would elevate “political or moral disapproval” to be the sole or main factor, and the noble Lord, Lord Palmer of Childs Hill, wants to introduce the concept of materiality into influence. Both these would just create huge loopholes, which would allow public bodies to conceal their boycott activities within other factors. Clever lawyers would find ways of writing papers which support decision-making in, say, local authorities or other bodies affected by the Bill, by reference to a whole load of other factors, to support the claim that they were not “materially” influenced by their disapproval of a foreign state, or that it was not the sole or main factor. I genuinely have a problem with the watering-down implied by Amendments 1 and 2.

I listened very carefully to what the noble Lord, Lord Verdirame, said about his amendments. I understand that he is trying to find a way through by removing the reference to “political or moral disapproval”, but I am not convinced that his amendments work either. In particular, I am not sure what the restriction to “that territory” in his Amendment 4 will do. Let us suppose that the territorial consideration is Ukraine, because it has to relate to a particular foreign territory by virtue of subsection (3). Does that mean that the decision-maker must have no regard to what is happening in Ukraine itself? It seems to me that “that territory” can be related only to the territorial consideration referenced in subsection (2). In that case, it would be Ukraine. If, say, Russia is the foreign state you have a problem with, it seems that you can take account of its activities only in Ukraine. You could not take account of activities that were not in Ukraine—for example, attacks from other places, such as the Black Sea, or whether it takes children from Ukraine back to Russia. If you thought that Russia was the territory—still restricting it to one territory—you have the problem the other way around; you could take activities only in Russia, but not in Ukraine, which is the fundamental problem. That creates an interpretive problem.

While these distinctions might not matter if we are talking about Russia and Ukraine, if you try and then relate it to a council or other public body trying to boycott Israel, and relate that to the complexities of the different parts of the territory around the State of Israel, you may end up finding some odd conclusions on how the reformulation might work in practice. I am aware that the noble Lord, Lord Verdirame, is a very clever lawyer and I am not, and I may well have completely misunderstood how his amendment is intended to work.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, because this is the first group, I again state that I think that a lot of these amendments are trying to establish what is intended by the Bill, in a probing way. In that sense, they are very helpful for clarification on the language used. It was clear from Second Reading that most of the people who have since tabled these amendments and are speaking now are not in any way defending BDS; it was clear to me anyway. These boycott schemes are censorious and illiberal, and very often, as was stated at the time, the seeding ground for anti-Semitism in public life. In that sense, I oppose them; I am just not clear how the Bill will actually tackle them.

As we speak, just to use an example, the Rio Cinema in London has just cancelled its Eurovision party on the basis that it will not hold it while Israel still has somebody in the Eurovision Song Contest. I do not know whether this is self-declared BDS; it is a charity, and I am not quite sure how the Bill would apply. The point I kept trying to make at Second Reading was that, so often, I feel that the Bill will miss where a lot of the anti-Semitic censorship is occurring, around the periphery, rather than just in terms of divestment and investment, and so on.

I say that because those of us who are interested in tackling those issues need to have as much free speech as possible. I particularly support Amendment 6 from the noble Lord, Lord Wallace of Saltaire—although both his amendments are interesting—which makes the point about

“any person seeking to persuade the decision-maker”.

That is what politics is, is it not? Trying to persuade a decision-maker—lobbying and trying to have an influence on politics—is surely the job we are all in, even if we disapprove of, in this instance, what someone is trying to persuade about. I just get anxious about this being in a Bill; it sets a dangerous precedent.

Points have been made well by other noble Lords about the use of the language of political and moral disapproval; I want there to be far more political and moral disapproval in politics today than there is. It is an entirely good thing to make that clear. I wish there was a bit more “political and moral disapproval” leadership in general, even though many of us arguing that would disagree over what it should be. That is fair, but it is far better than a kind of technocratic approach. Also, if we are to win the hearts and minds of many of the young people who go along with BDS campaigns, we will have to show our political and moral disapproval, and win them over and seek to persuade them. Noble Lords get the point, but it is not clear how the language in the section to which these amendments refer will help us to tackle the problem that the Bill seeks to address.

[Baroness Janke (LD)]

My Lords, I also wish to speak in support of Amendments 1 and 6 in the name of my noble friend Lord Wallace. As a former councillor, I can imagine that former colleagues will be absolutely horrified at the scope of the Bill. We are talking about how moral and political disapproval cannot be used as the basis of a decision. Many councillors get into politics because they have moral and political views—they want to change the world and do something about things in their own area. I would welcome clarity, as others have asked for, on how it is to be established whether a decision-maker has been

“influenced by political or moral disapproval of foreign state conduct”.

What means might be used to actually determine this, in the event of needing to enforce action against it?

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want to return, very briefly, to something the noble Lord, Lord Mann, raised earlier. I can understand in the broader sense why universities have been included, because very often it has been universities that have been at the cutting edge of popularising boycotts. They have taken a wide range of forms—and not just in terms of what is sold or invested in. As the noble Lord, Lord Johnson, pointed out, it could be denying people research, not letting Israeli academics come over to speak or whatever. There are all sorts of ways that this happens. So, I understand why the university sector is in scope. My problem is that it is not clear to me how a Bill like this can do anything other than attack academic freedom, which I am interested in defending. I think we have to deal with what is happening on university campuses in a different way.

Regardless of that, the reason it is frustrating—and why I am referring to what the noble Lord, Lord Mann, said—is that, if you have a conversation with anyone outside this Chamber, if they are like me, they are worried about BDS and anti-Semitic campaigns against Israeli academics. Something has just happened at King’s College London in fact, where an event has been called off, and there is a University of Leeds chaplain in hiding —all these things are going on. Ironically, if anything, this Bill is too narrow to deal with what is really happening. The point that the noble Lord, Lord Mann, made was that the way wording happens, there are ways around it that this Bill will not deal with. He and I might differ about how we would deal with that—I think we probably would. None the less, given what a public authority is, it is understandable why universities are in here—but, as people have said, which bit of the university?

For the Minister to say “Oh, no, it wouldn’t count, student unions”, would be utterly ludicrous. From the Government’s point of view, even if I go with you, why would it not be student unions? That would be mad. They are part of what the public authority of the university is about, along with research councils and everyone else. I am not trying to encourage the Government to wipe up every part of a university to bring them in scope, but to keep saying that they are not in scope makes no sense from the point of view of the public justification for this Bill by Michael Gove when he has argued for it, and anyone else who supports it. So we do need some clarity here.

[Lord Davies of Brixton (Lab)]

My Lords, this debate has referred consistently to universities, but I do not want the point to get lost that there is an equivalent problem with local government pension schemes, where a succession of bodies take part in the decisions that are reached. Every fund has advisers, in particular advisers on ESG. The trustees are responsible for the decision, but they are under a legal obligation to give due regard to their advisers’ views. Now, because of the encouragement by the Government, the individual funds are not actually investing the money; the money is passed on to a pooled fund that equally has its advisers and its decision-makers. Somewhere in that thread of control, someone is a decision-maker, but I defy the Minister to tell us precisely, in the terms of this Bill, who it is.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

The thing is, though, as we are teasing out, is it not right that the Bill would not stop Warwick University student union from passing a motion in that regard? It would stop the university from acting on it, but no university has ever acted on these things. That is why we are all scratching our heads a little about what we are going to get from the Bill. It was a manifesto commitment—we understand that—but it is not our fault if the Government cannot turn their manifesto commitment into a usable piece of legislation.

[Baroness Fox of Buckley (Non-Afl)]

On the Warwick University point, for clarification, the other important thing that happened there was that Warwick University academics refused to sit on a panel discussing the issue of Israel, and so on. That was led by academics. It would not be affected by the Bill. The Minister can say, “Oh, that’s okay, it won’t be affected by this Bill” but that has had a much more damaging impact on the debate around Israel in Warwick University than anything that a few people at the student union did and that the university authorities did not act upon. What the university did not do was support those Jewish students and the organisation that organised that debate, and it let the academics carry on. The question of what the Bill will and will not do, and who will be held responsible, is what we are trying to clarify in this Committee.

[Baroness Deech (CB)]

My Lords, I did not come prepared with examples about universities—my memory is not that good. However, there have been very many occasions where violence used by anti-Israel students has forced the university to cancel speakers or to charge Israeli and Jewish societies for their own security when an Israeli or a pro-Israeli speaker comes. There are manifold examples of this, and I have dealt with it over the years. If noble Lords do not know about this, they really should.

The comments that have been made by the noble Lords, Lord Mann and Lord Wallace, and the noble Baroness, Lady Fox, take us to the heart of the Bill and why the drafting is so difficult. What the Bill really means to do is clamp down on anti-Semitism in local authorities and universities, but it cannot say so in direct terms; therefore, it goes much more broadly than it needs to, because it is academically dancing around the subject. If I could rip it up and start again, I would have a couple of clauses saying that anti-Israel activity—anti-Zionist activity, if you want to call it that, or anti-Semitic activity—is prohibited in universities and public authorities, because there are no examples of universities and public authorities acting against Australia, to give a fanciful example. Is anyone banning Australian wine because of what happened to the Aborigines? Is anyone banning New Zealand lamb because of the way the Māoris were treated? Is anyone, anywhere, ceasing to use Chinese products? I need hardly go on.