Economic Activity of Public Bodies (Overseas Matters) Bill

Baroness Janke Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

[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?

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[Lord Wallace of Saltaire (LD)]

My Lords, I have had advice from a professor of law at Cambridge University that it is not within scope where the research funding is not public. It is then a private act, not a public act.

[Baroness Janke (LD)]

My Lords, very many points have been made about how the decision-maker is established. From the point of view of local government, in local councils there are very many ways of taking decisions that can be individual or corporate. The tiers of responsibility and the trails that decisions make throughout a large organisation would need to be explored if enforcement action was to be taken.

In addition, councillors, committees or even pension committees, as we heard earlier, are advised by experts and independent advisers, so it is not clear where the line of accountability is and who is responsible, who is to be identified for enforcement action. The public authority, as has been identified earlier, is the body that is talked about in relation to Clause 4, but it is not in the Bill and does not relate to any other part of decision-making. I add my plea for further clarification as to how the decision-maker is to be identified and how enforcement is to be pursued in light of that.

As far as pension funds are concerned, as a former member I know that expert advisers do take account of political situations in their evaluation of risk. Again, that may be intimidating for councillors or advisers and inhibit the quality of advice that is given.

[Baroness Neville-Rolfe (Con)]

My Lords, Amendment 7, tabled by the noble Lord, Lord Collins of Highbury, and Amendment 55, tabled by the noble Baroness, Lady Chapman, seek clarity on whether an individual is considered a decision-maker for the purposes of this Bill. It was helpful to hear the introduction from the noble Baroness and her wish for general elucidation. As she implied, it is an important part of the Bill’s provisions. I will try to confine my points mainly to decision-makers, which are the purpose of this group.

A public authority will generally delegate responsibility for decision-making on procurement and investment decisions to individuals within the public authority. The individuals who make the decision on behalf of the public authority will do so in accordance with the public authority’s internal policies and structures. To address the noble Baroness’s question on enforcement, even when an individual is making decisions or speaking on behalf of a public authority, the ban applies only to the public authority itself. There is no personal liability for the individual. Individuals will therefore not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban in Clauses 1 or 4.

On the noble Baroness’s question on pensions—this is something I know about because I have served as a pension trustee, admittedly in the private sector—this is something we can come back to in more detail when we discuss Clause 12, but I will also look at the Local Government Association material that she referenced, which I am sure will be helpful and interesting.

My noble friend Lady Noakes made the point that there are some limited cases where individuals are the public authority in their own right. She asked for examples, so I suppose that examples would be UK Government Ministers, Ministers from devolved Administrations and police and crime commissioners. They could also be individuals such as mayors if they exercise public functions in their own right. Any individual who is a public authority in their own right is already subject to far-reaching and fundamental duties under the Human Rights Act 1998. They could be subject to court action if they restrict others’ human rights, and the duties in the Human Rights Act are much more wide-ranging than the prohibitions in this Bill. It would not be appropriate for these individuals to be pursuing policies that are not in line with the official foreign policy, which is, of course, set by the UK Government. To be clear, local authority councillors and university leaders are not public authorities in their own right.

Amendment 55 would require the Secretary of State to publish guidance to clarify in what circumstances an individual is a decision-maker before the Bill commences. We do not believe that it would be appropriate to publish guidance on this matter, as every public authority is structured differently and has different policies on how its internal decision-making process operates. As it happens, as the noble Baroness, Lady Janke, said, structures vary a lot, and that is the case.

To give the House an example, in the case of local authorities, they will have a scheme of delegations in place, with, for example, a commissioning board, which will indicate who takes procurement decisions. While the decision is made by the individuals on the board, they have been empowered to take those decisions via the scheme of delegations, and it is therefore the local authority that is the legal decision-maker in the context of the ban. This is made clear in Clause 2(1) of the Bill. Even when an individual is making decisions or 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. Therefore, individuals will not personally be responsible for any fines that may be imposed on public authorities for a breach of the ban. The concerns on this issue—