Economic Activity of Public Bodies (Overseas Matters) Bill

Felicity Buchan Excerpts

2nd reading
Monday 3rd July 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

I thank Members from throughout the House for their impassioned and heartfelt contributions. Let me remind the House why we have introduced this legislation: we believe that we should have one foreign policy, and we also believe that BDS campaigns risk undermining community cohesion. We believe that public bodies should not be wasting time and money on pursuing their own foreign policy agendas and should instead focus on providing vital public services and delivering value for money for the taxpayer in their procurement and investment decisions.

Let me also clarify certain misapprehensions that certain Members have about the Bill. First, the Bill applies only to public authorities. It does not apply to private individuals or private companies, except if they are exercising public functions. It does not place restrictions on local councillors, except when they talk expressly on the behalf of their local authority. It does not prevent public authorities from making statements on foreign policy; it prevents them only from making a procurement or investment decision if it is motivated by moral or political disapproval of a foreign state’s conduct.

Many Members have mentioned clause 4. I reassure Members that clause 4 only prevents public authorities from making statements of intent to boycott or divest. It does not prevent public bodies from disagreeing with this legislation. The Bill does not ban ethical, religious or socially conscious funds, so, for instance, climate change funds can continue with the Bill unless there are issues that are country-specific.

A number of Members mentioned clause 3(7). I want to clarify the role of the clause. The Bill applies equally to all countries. Countries can be exempted from the ban by secondary legislation, which is what we are planning to do with Russia and Belarus—[Interruption.]

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. This has been a very good-natured and difficult debate. It has been held with disagreement, but courtesy across the House. People have now come into the Chamber who have not been here during the debate and it is most discourteous of them now to make so much noise that we cannot hear the Minister. That is bad behaviour and it is bad for the way in which we do things in here, especially on a day when we have had a very well-constructed and conducted debate.

[Felicity Buchan]

Thank you, Madam Deputy Speaker.

Given the focus of the BDS campaign on Israel, we are simply saying in this clause that, for Israel to be exempted from the legislation, it will require primary legislation. I want to make that very clear. This policy does not affect our foreign policy position. We are not legislating for the UK’s foreign policy on Israel or on any other country in the Bill. The purpose of the Bill is to ensure a consistent approach to foreign policy across our public bodies, led by the UK Government. The Bill will not prevent the UK Government from imposing sanctions, or otherwise changing our foreign policy on any country in future.

I stress that none of the provisions in the Bill changes the UK’s position on Israeli settlements in the west bank and the Golan Heights. We are continuing to urge Israel not to take steps that move us away from our shared goals of peace and security. We support a negotiated settlement leading to a safe and secure Israel living alongside a viable and sovereign Palestinian state, based on 1967 borders with agreed land swaps, Jerusalem as the shared capital of both states and a just, fair and realistic settlement for refugees.

Furthermore, our position on settlements is clear: they are illegal under international law; present an obstacle to peace; and threaten the physical viability of a two-state solution. Our position is reflected in our continued support for UN Security Council resolution 2334, with which the Bill is compliant.

[Richard Graham]

What the Minister says is not really what is reflected in the Bill because a specific exemption is given not just to Israel, in what should be a country-agnostic Bill—just like our manifesto commitment—but to two parts of Israel which we do not recognise as part of Israel under international law. Therefore, there is specifically an exemption for Israel. Does she agree—the Secretary of State said earlier that he would listen very carefully to suggested amendments—that this is something that needs to be worked on during the Bill Committee?

[Felicity Buchan]

UN Security Council resolution 2334 asks countries to differentiate between Israel and the occupied territories. We have done that in this clause; they are clearly separated out in different paragraphs. However, as the Secretary of State said in his opening remarks, we are open to any discussions on the Bill and of course we want the best legislation here.

[Alicia Kearns]

rose—

[Felicity Buchan]

I am very conscious that, in the interests of time, I only have a few minutes.

[Alicia Kearns]

My hon. Friend knows the incredibly high esteem I hold her in, but it just is not credible to keep repeating that this does not change how we treat the Golan Heights, which have been annexed, and the Occupied Palestinian Territories. The Foreign Office’s own legal advice states that the Bill could breach UNSC 2334. How am I being told repeatedly from the Dispatch Box that that is not the case, when that is what Government lawyers are saying themselves? We have a responsibility to uphold that resolution. We drafted this legislation and therefore we need to remove clause 3(7). We on these Back Benches have offered a landing platform to the Government: “Remove that clause. You can still do this.” But please do not repeat that this does not change anything when the Government lawyers themselves say it does.

[Felicity Buchan]

The Government’s view is that the Bill is compliant with UN Security Council resolution 2334.

I move on to the reasoned amendment, which rightly recognises the impact that boycotts and divestment campaigns can have on undermining community cohesion. The Government, however, are resisting the amendment on the basis that this legislation is a robust and proportionate means of stopping public bodies engaging in divisive campaigns and of fulfilling our 2019 manifesto commitment. The amendment refers specifically to the Uyghur Muslims. This Government are concerned about the issue of Uyghur forced labour in supply chains and are taking robust action. The exceptions in this Bill, alongside the exclusion grounds in the Procurement Bill, will keep suppliers involved in labour market misconduct, including human trafficking and modern slavery, no matter where they are in the world, out of public sector supply chains.

We have already discussed the point on the occupied territories and the Golan Heights. The amendment claims that this Bill limits freedom of speech, but that is not the case. Private individuals and bodies are not affected by the legislation. The right to freedom of speech is protected by article 10 of the European convention on human rights and the Government remain strongly committed to the UK’s long and proud tradition of freedom of speech.

The amendment also criticises the powers given to the Secretary of State to enforce this ban. Far from being the unprecedented powers claimed, they are modelled on existing powers of regulators such as the Office for Students and the Pensions Regulator. It would simply not be logical to impose a ban with a toothless enforcement regime.

This legislation delivers an important manifesto commitment. It will ensure that the UK has a consistent foreign policy approach and speaks with one voice internationally. I look forward to working with hon. Members throughout the Bill’s passage to deliver this important legislation and to continuing engagement on the issues that hon. Members have raised in the House today. I commend the Bill to the House.

Question put, That the amendment be made.

Economic Activity of Public Bodies (Overseas Matters) Bill (First sitting)

Felicity Buchan Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[The Chair]

I would like to call the first Member to ask a question—Minister.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

Q Thank you, Chair. It is a pleasure to serve under your chairmanship. I would like to thank our witnesses for their time and expertise.

There have been instances where local government pension schemes have come under pressure from civil society groups to divest from a particular country or territory. Is that something you are aware of? What kind of pressure have you faced? Do you think that the Bill will allow pension schemes to focus on delivering value for their members, rather than being distracted by political campaigns?

Jon Richards: Perhaps I can start. Thank you very much for the question and for inviting us here. There have been limited incidents where there have been local attempts to push forward BDS at local levels. As a pension scheme, we are clear that this is a scheme about delivering pensions. Its fiduciary duty is on members to deliver what members want and expect. If, at any time, there are questions raised, we remind people of the fiduciary duty, which is the most important thing that drives matters.

Unfortunately, in recent years, we have seen a number of attempts by Governments and even suggestions by both the main parties that we should invest in various things—private equity and all the rest. That interferes with our duty to deliver pensions, and that is what drives us. So there have been a few small attempts, but they have not taken place. We have also seen some global investment managers making separate decisions, which our pension funds do not have any control over. Those are outwith our ability—we cannot do anything about it if they make those decisions, because it is a global investment association.

What we are fundamentally saying is that our primary duty is our fiduciary duty. Unfortunately, this Bill will interfere in that, and that is what our concern is. It has the potential to increase our administrative costs, as we have to monitor whatever we are asked to do, but also potential legal challenges, which we expect, because we know this is a very difficult minefield. So we have real concerns about the administrative governance and financial costs that this will put on us.

[Felicity Buchan]

Q But do you agree that it is not for pension funds to run your own foreign policy?

Jon Richards: Our primary aim is our fiduciary duty to deliver pensions, and you will hear us say that probably 10 more times throughout this session.

[Felicity Buchan]

Q Absolutely. Jo, do you want to come in on those questions?

Jo Donnelly: It is not a technical matter. My role here today is to assist you on the technical pension side of things.

[Felicity Buchan]

Q Great. Some may argue that the existing legislation is confusing and not comprehensive enough, as it does not deal with divestments—it deals with investment procurement decisions. In your opinion, does the Bill do enough to improve on existing legislation and prevent divestment campaigns?

Jo Donnelly: I think there are concerns around the clarity of a number of the provisions in the Bill and around how that will be dealt with in practice by pension committees, who are primarily making the decisions in the LGPS around investments and around strategy.

On the procurement side of things, I have taken some advice from my procurement colleagues in the LGA—obviously, I am not a procurement expert—and they have told me that, on the procurement side of things, there is nothing here that would cause any problems. The thing that is asked for is some more clarity around how the provisions on procurement in this Bill would interact with the Procurement Bill, which is currently going through Parliament as well. I think there is the potential for some confusion about how the provisions of each Bill interact with each other. So there is a request for some clarity and for clear communications to local authorities, and the LGA is happy to assist with that clarity on the procurement side of things.

[Felicity Buchan]

Q But you are happy that, given clear guidance on the harmony between the Procurement Bill and this Bill, this is very operable.

Jo Donnelly: On the procurement side, yes.

[Felicity Buchan]

Absolutely, yes.

Jon Richards: But not on the pension side. That is the difference: with procurement and pensions, this Bill will have a different impact on the ability in procurement, as opposed to the fiduciary duty, as I will say many times, versus pensions trustees.

[Felicity Buchan]

Clearly, this Bill is not—

[The Chair]

Before the Minister proceeds, could I just remind her that we have a fairly tight timetable? Perhaps she could take that into account in future questioning.

[Felicity Buchan]

Q Indeed. I just have one final question on the regulator. We have the Pensions Regulator in the Bill as the appropriate body for enforcing the ban, and they are clearly accustomed to similar roles. Do you think that that is the right regulator?

Jo Donnelly: There are not that many options in the pensions space for the LGPS. The Pensions Regulator already has a role in relation to the administration and governance of the LGPS, but it does not have a role in the investment side of the LGPS—it does with other, private sector pension schemes, but not the LGPS. So the provisions in the Bill would expand TPR’s powers over some investment-type decisions in the LGPS. Our main concern around the regulator’s role is that they ensure that they limit their oversight of investment decisions to the provisions of the Bill and that they are properly resourced and trained to do that role, because it is quite different to what they are used to doing already.

[Felicity Buchan]

Thank you, Chair.

[Alex Norris (Nottingham North) (Lab/Co-op)]

Q Thank you to our witnesses for their time. In opening, you were very clear, Jon Richards, about what your job is and what your job is not, and I think the Committee will have taken some comfort from that. Do you feel you need extra tools or controls do that job?

Jon Richards: I do not think we do. I think we think that the level of regulation of the LGPS is also already very high. You will have seen that the Government have just introduced a whole series of additional pension consultations, which we have to do—which poor Jo has to deal with and spend a long time on. Again, we think there is significant regulation. We have a regulator and we have a clear fiduciary duty. Trustees have clear responsibilities, including training responsibilities. They have a clear understanding of what should be done. There is a need for improving governance, and we have been doing a lot of work on that, including training. We have also tried to issue guidance on the need to be clear that, if there are challenges, or attempts to move people away from the fiduciary duty, we need to drag people back to that, and they should not be diverted by some of the political games that are potentially out there.

--- Later in debate ---

[The Chair]

Thank you. Minister?

[Felicity Buchan]

Q Can you set out why you think that this legislation is necessary and also touch on the links between BDS campaigns and antisemitism?

Russell Langer: Sure. The boycott, divestment and sanctions campaign—BDS—against Israel is a pernicious campaign, which seeks to single out the world’s only Jewish state for unique treatment. As I just said in the previous answer, when we look at the picture in public bodies around this country when it comes to foreign policy discussions, Israel is the only country that is singled out in this way. That was something that was made clear in the House of Commons Library briefing, prepared ahead of Second Reading, as well. I therefore believe that the legislation is necessary to end the practice of Israel being singled out in that way by public bodies around the country.

On the links to antisemitism, the link between antisemitism here in the UK and the situation in Israel is clear—it is clear in the statistics, in the months with the highest levels of antisemitism on record, which all correspond to the months in which conflicts have happened in Israel. That link is clear.

When the Jewish community is most vulnerable in this country and when antisemitism is at its highest, we tend to see public bodies under intense pressure from campaign groups to get involved by boycotting Israel. That comes back to the point that I made about it being the only time that they are usually asked to get involved in such foreign policy. The legislation will therefore allow public bodies such as local authorities, higher education institutions and cultural organisations to focus on improving community cohesion at a time when it is at its most threatened. The legislation is helpful to that.

Daniel Sugarman: If I might add to that, on the links to antisemitism, there are a few points to consider, the first of which is the somewhat questionable double standards. People who take an extreme interest in the Israeli-Palestinian conflict and call for a full boycott of Israel seem rarely, if ever, to call for boycotts of any other country. It appears to be just the world’s only Jewish state that gets that sort of treatment.

The history of boycotts against Jews is a painful one, linking directly back to Nazi Germany, and it is clear that at least for a significant percentage of the community, when we hear about boycotts against Israel, that is a link that is raised. We have also had cases, unfortunately, where people participating in BDS campaigns have gone beyond Israel. For example, in a supermarket, a bunch of BDS campaigners went in and started defacing products that they felt were Israeli-linked, but of course they went straight for the kosher food section, not appearing to distinguish. That sent a clear signal.

I will make two more quick points, if I may. First, polling suggests that more than 80% of British Jews see Israel as either central or important to their Jewish identity. There is a very strong link between the Jewish community and Israel. When Israel and Israel alone is targeted in such a manner, that really has a strong impact on the Jewish community.

The other thing to consider is that the co-founder of the BDS campaign has been very clear about what he sees as the end goal, which is not a two-state solution, but the destruction of Israel as a state and its replacement with a state in which Jews are a minority. Given that in the past 50 or 60 years we have seen exactly what has happened to every single other Jewish community in the Middle East that was a minority, I think that the Jewish community here and elsewhere is right to be profoundly concerned.

[Felicity Buchan]

Q I have one more question. Clause 4 prohibits a statement of intent to boycott. Do you agree that that is a necessary addition to the Bill? One further question on enforcement: do you think that the enforcement regime is necessary?

Russell Langer: On clause 4, as I said, with BDS in public bodies, that is something we have seen over the course of several years. Often, while the results have an impact on the Jewish community, that impact is not limited to the implementation of BDS; it is part of the febrile nature of the debate, bringing it into our public bodies. Once again, the specific point is that that tends to be the only foreign policy with such debate in our public bodies in this country. Therefore, I understand the purpose of the clause, and to that extent definitely see the need for something.

In terms of the enforcement powers, absolutely—this Bill would have little merit without having adequate enforcement powers. Without them, it would lean towards a situation that we have now, whereby it is up to individual campaigners to raise these issues through judicial review and so on. Therefore, one of the key parts of this Bill is having proper enforcement powers to ensure that it is enforced.

[The Chair]

Q Before I bring in another Member, I think that this question has been partly answered but I would like to see whether we can get a clearer answer. Is there a distinction to be made, in terms of the provisions of the Bill, between on the one hand questioning the right of the state of Israel to exist and on the other hand being free to criticise the actions of the Israeli Government at any given moment in time?

Russell Langer: Absolutely—I am tempted to give you that one-word answer. There is absolutely no issue here in the Bill in terms of criticising Israel. The UK should have robust foreign policy on all issues, including Israel, and I do not think that anything should get in the way of that. However, what we have seen is a problematic picture, whereby the only country that any public body seeks to wish to criticise tends to be the one Jewish state in the world, and that I have an issue with. Nevertheless, I am not getting in the way of anyone here criticising Israel should they wish to do so.

--- Later in debate ---

[The Chair]

Thank you.

[Felicity Buchan]

Q Can you tell us about previous attempts by councils to pass motions to boycott Israel? Do you agree that this legislation will help local councils to remain focused on their core functions, rather than being distracted by BDS campaigns, and give them clarity that they should avoid BDS campaigns?

Councillor Deering: I do not know whether it will disappoint you, but in Hertfordshire we have had very little agitation—if I can use the word—of this type. Ahead of me coming here today, we did the best that we could to check our records, and we think that there may have been some form of question or petition that may have come through in 2022 related to Israel. We then had something post the Ukrainian issue that related to Russia. We think that that is just about the limit of our experience in recent times, so maybe we do not have a lot of experience to draw on. We would say that that is a good thing, because in Hertfordshire we are trying to manage our finances in an objective and hopefully sensible way for the benefit of the residents of Hertfordshire, not for any particular lobby group, whichever it may be. My answer to your question is yes: what you are looking at here probably would be helpful.

If I may just add a rider, there is some crossover between what you are looking at here and procurement. I think we would be keen that no grey area emerges across those two areas of interest.

[The Chair]

Q Councillor Jamieson, is there anything you wanted to add to that, or are you happy with it?

Councillor Jamieson: I would also reflect that my personal experience in Central Bedfordshire is that we have not had motions of this nature relating to countries. Interestingly, we have had, on occasion, motions that would not be covered by this Bill, but which I would say were of a broader political nature and did not focus on what local government should be doing, which is delivering for our residents locally. My own personal view is that that is what councils should be focused on. Foreign policy really should be a matter for Government.

[Felicity Buchan]

Q There are exceptions in the Bill that permit investment decisions, such as labour market misconduct or environmental misconduct. Do you think that those are appropriate and are the right balance to strike?

Councillor Deering: That is quite a big question. I am conscious that you will be taking evidence from all sorts of people. I might provide you with a neutral answer, if I may. We can see why they are there. Again, I do not wish to be repetitious or boring, but really we simply try to run our finances as best we can. In principle, we do not want awkward issues to come up that make it difficult for us to run our finances in the way that we think is best for our residents.

Councillor Jamieson: I do think that it is important that pension funds—as is currently the regulation for pension funds—can take into account issues that would be of concern to their pension holders. That is right, and that is a carve-out, albeit it also has the carve-out—I cannot remember the exact wording— that effectively it must not have a significant financial impact. I think that is right. For instance, with things around the environment, people might have concerns when investing in certain companies. Local government has a public health duty and I could completely understand if certain councillors wanted to avoid investments in businesses that they deemed were harmful for public health. A classic example would potentially be the tobacco industry. I think it is important that we can still make those decisions.

[Felicity Buchan]

Q One final, holistic question: are you supportive of the Bill and why?

Councillor Deering: I think we are. I think we would support it for the central reason, which is that this country’s foreign policy, it seems to us, should be made by Government and should therefore be a coherent, unified foreign policy, rather than being fragmented across goodness alone knows how many organisations across the country, thereby becoming disparate. So yes, we are supportive.

May I come back on something the previous witness has just said in relation to pensions? Our experience is that if we find that there is some degree of pressure, it is more likely to come in relation to pensions. Our pension fund is valued currently at about £6 billion, which is a lot of money. We have 115,000 members and 400 employers. We take our responsibilities for our pension extremely seriously and I have been on our pension committee for a number of years. We have from time to time had situations where people, exactly as has just been said, come along and say that we should not be investing in x or we should not be investing in y because. There is a degree of difficulty with that because we understand always where people are coming from, but clearly, in the pension world, we have a fiduciary duty to deliver—to put it loosely but broadly—the best pension we can for all the prospective beneficiaries of our pension scheme. That comes up from time to time.

At Hertfordshire, we have an extremely good pensions committee. It is cross-party, as you would expect, but it is not party political. The reason I have come back to this is because, of course, environmental, social and governance is an issue in all investment these days. All the advisers that advise us in relation to our pension investments have some facility to advise on ESG. It might be thought that that strays into that area—tobacco, coal or whatever it is—but ESG works its way through to value and you start to realise that, actually, it is an investment criterion because it affects the value of what you are investing. I thought I should just say that because that is probably our biggest experience in this area.

[Felicity Buchan]

Q Just a point of clarification: the Bill only prevents decisions being made on the basis of moral or political disapproval of states as opposed to banning fossil fuels or environmental matters. It does not cover that.

Councillor Jamieson: I am speaking personally here. This is not an LGA view, just to be clear. I think the principle of this legislation is absolutely fine and, in many ways, helpful because it enables people on a pension committee to be very clear that they cannot consider countries when looking at this. However, my caveat is that there are some details in the regulations that need clarifying and those are quite concerning. It is not the principle but some of the details and we just want to make sure that some of those are right.

[Alex Norris]

Q I would like to start by putting on record the thanks of Members of the Opposition Front Bench to Councillor Jamieson for his leadership of the Local Government Association. It is safe to say that it is a broad family of all parties and none, so that leadership in a single person is an exceptionally tricky job and I think you did a very good job of it. As I say, we are grateful for your leadership and your candour with us when we have asked you questions in the past. Thanks again for your and Councillor Deering’s presence.

We speak a lot in this Parliament about transferring power from here to local communities, namely our local councils. The Bill very much transfers power from our local councils to this place. How do colleagues in the local government family feel about that?

Councillor Jamieson: Thank you very much for your kind words. As I should have mentioned in my little statement a moment ago, I am very vexed—and was very vexed as chairman of the Local Government Association—by the underlying trend of giving powers to local government with one hand and taking them away with multiple hands. I can genuinely understand why it is being done, but I do not like the fact that it is another example of central Government just eating away at the freedoms and devolution of local government, but there are far more contentious areas than this one in which I would argue that the Government have taken back powers.

Councillor Deering: My view is very similar. I do not know that in Hertfordshire we feel particularly that this is a power grab from us; I think we understand the rationale of the Bill, or the proposal. If we had more experience of problems in the area, maybe we would feel differently, but I think we would say that we are fairly relaxed about this.

--- Later in debate ---

[The Chair]

We have a couple of minutes left in this session, if anybody has a question that they have not had the opportunity to ask. I call the Minister.

[Felicity Buchan]

Q There has been quite a lot of talk as to whether councillors can express their own views. The Bill applies only to public bodies, so a councillor can express their own view; it is simply that, if a councillor is talking on behalf of the local authority, they are covered by the Bill. In the light of that, are you comfortable with the Bill?

[The Chair]

Before I bring in the witnesses to answer that question, Bob Blackman has a very quick point.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Hannah Weisfeld, director of Yachad. For this session we have until 11.10. Could the witness introduce herself, for the record?

Hannah Weisfeld: I am Hannah Weisfeld, the executive director of Yachad.

[Felicity Buchan]

Q I understand that Yachad does not support the BDS movement. Can you explain why?

Hannah Weisfeld: I guess I should start by clarifying who we are and what we do. We are a British Jewish organisation that works within the mainstream of Anglo-Jewry to build support for a political resolution to the Israel-Palestine conflict.

We do not support or advocate for the BDS movement, because we believe that putting pressure on one side does not necessarily bring about a resolution to the conflict. However, we are very clear that we support the right to non-violent protest. While we do not support or advocate for the BDS movement, we support the rights of individuals to adopt methods of non-violent resistance to Israeli Government policy—and in fact to the policy of any Government anywhere in the world. So, we would not advocate for the movement, but we would absolutely advocate for the right of people to express their opinions and to apply pressure in a non-violent way.

[Felicity Buchan]

Q So do you think it is appropriate for councils to support the BDS movement, with all the implications of them getting distracted from their core function—clearly, foreign policy is a reserve function for the UK Government—and also the consequences in terms of bringing dissension to local communities?

Hannah Weisfeld: Well, I know that one of the motivations for this piece of legislation has been around community cohesion and the idea that debating issues that are contentious at a local level creates community dissonance and disagreement. There is a reverse to that, which is that when you crack down on the ability of people to express their opinion and to express it in local democracies, you can do the exact opposite, which is that rather than bring people together, you can create real disharmony among communities. That has been mentioned already in the Committee this morning. There has been a tiny number of examples of there being what we would refer to as BDS motions at a local government level and in public bodies. I would not be overstating the reality if I said that if this legislation passes in its current form, there will be BDS motions in public bodies all across the country where people try to test this legislation because they are so frustrated that their right to express an opinion has been clamped down on. If the motivation here is to create community cohesion, there is a very real worry that this is going to do the exact opposite.

[Felicity Buchan]

Q But this Bill does not apply to private individuals or private companies; it applies only to public authorities. The motivation behind the Bill is to have one reserved foreign policy that is run by His Majesty’s Government, rather than local authorities which are tasked with providing local public services getting distracted away from their core functions.

[The Chair]

Could I just say that that is a statement, rather than a question?

[Felicity Buchan]

I am sorry; I was just about to say, do you agree?

Hannah Weisfeld: I do not think we have evidence, and the Committee has not just heard that the people representing local government have been particularly distracted. To me, the Bill is not really about that issue; it is about creating what I think will become quite a nasty debate around Israel-Palestine, and I do not think that that is going to benefit the Jewish community particularly.

[The Chair]

This is a very short session and three people have signified that they want to ask questions. I will bring in Wayne David. Again, I ask Members to be concise in their questions and our witness to be equally concise in her answers.

--- Later in debate ---

[Felicity Buchan]

Q Can you set out why you think this Bill is needed?

James Gurd: I think this Bill is a very welcome piece of legislation and will go a long way towards reasserting the UK Government’s reserved foreign policy powers. In recent years—over the past decade, really—we have seen that being challenged by an increasing number of public bodies pursuing very divisive BDS activities in the UK. Indeed, the Government have made repeated efforts through the issuance of guidance to try to challenge that; I think the Government have now finally, rightly, reached the decision that legislative action is required.

Those BDS activities, as we have heard from a number of other witnesses this morning, have led to community division. I do not see it as the place of public bodies to be, effectively, picking one side in a dispute over a foreign policy matter that is several thousand miles away. The Jewish community—I believe, as a non-Jew—has felt increasingly isolated in the United Kingdom throughout this process. It is probably worth stating that no UK political party is on the record as supporting BDS, so I would hope that there will be broad support for this.

I believe that this legislation will also have a positive effect for the UK. The UK has very strong economic relations with Israel. Israel makes a very important contribution to this country’s national health service, for example, and BDS has had a chilling effect on those relations and on the prospect of further improved relations over recent years. I know that that is something that CFI certainly welcomes in the Government’s efforts to secure a free trade deal with Israel.

I believe that the Bill would also support the UK Government’s belief in a two-state solution. That is something that I believe is undermined by BDS. It is a movement that is, I believe, associated more with extremists. Certainly you can look at the Palestinian BDS National Committee, which is the organising body over in the Palestinian territories. That body includes organisations such as Hamas and Palestinian Islamic Jihad, which are terror groups proscribed here in the United Kingdom. Within the UK context, the Palestine Solidarity Campaign is seen as one of the most prominent organisers of the BDS activities here in the United Kingdom. It is an organisation that until a few years ago—I feel this is probably worth putting on the record—had a logo presenting a future Palestinian state on top of a state of Israel. So I believe that the Bill will have a number of positive implications.

[Felicity Buchan]

Q You have addressed the impact that BDS campaigns can have on community cohesion and, clearly, in driving antisemitism. Do you therefore think it important that we specify in the Bill that Israel can only be exempted from this Bill through primary as opposed to secondary legislation?

James Gurd: I believe that that is a reasonable approach that the Government have decided to take, and I believe it is a reaction to the fact that BDS is unique in its singular focus on the state of Israel. We have seen, as a number of others have referred to this morning, a House of Commons briefing note that pointed out that of all recorded examples of boycott activity pursued by public bodies in the United Kingdom, they are targeting exclusively Israel, so there is clearly a unique problem here.

When you look at the Bill in a broader sense, it is a Bill that has universal application. Foreign policy is a reserved matter for the UK Government; it is not, I believe, the place of public bodies to be pursuing that. They are there to represent all their diverse communities equally and to ensure that they are fiduciarily responsible in how they deliver that.

[Nicola Richards]

Q We have heard concerns from others giving evidence today about people who wish to disagree politically with things that happen in Israel. People should have the right to freedom of speech on those matters. In your evidence, however, you make it clear that the aims of BDS are to cut off economic and cultural ties. Do you believe that the nature of BDS is totally different from making a political argument against a Government and policies and activities that happen in another state? Is it that difference that makes it so damaging to the Jewish community, in your view?

James Gurd: We have seen a growth in BDS activities in public bodies over the last decade. As I have referred to before, BDS is uniquely discriminatory in nature, as it only targets Israel.

I first encountered BDS while I was at university. I was at King’s College in ’09, which coincided—as is so often the case when there is conflict in Israel and the Palestinian territories—with a spike in BDS interest. That led to a series of BDS activities, which students were perfectly entitled to do and which they will be able to continue to do under the Bill, but it led to a series of antisemitic incidents on campus. The head of the university had to send around a communication to all members of the student body to call it out. It has since gone mainstream, in the sense that it has left the student body politic and entered public bodies here in the UK, so it has grown as a challenge.

Having said that, it is worth putting it on the record that the Bill will in no way challenge the right of a private individual or a private company to pursue BDS. They are perfectly entitled to do so if they wish.

Economic Activity of Public Bodies (Overseas Matters) Bill (Second sitting)

Felicity Buchan Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[The Chair]

Good afternoon, everybody. Welcome to the second sitting of evidence on the Bill. We will hear from six panels of witnesses this afternoon. Gentlemen are more than welcome to remove their jackets; it is quite warm in here.

First we will hear from Dr Bryn Harris, chief legal counsel at the Free Speech Union, and Dr Alan Mendoza, the executive director of the Henry Jackson Society. Presumably Dr Bryn Harris will be brought in when he arrives, but meanwhile, Dr Mendoza, if you are happy for us to do so, we will start by directing our questioning to you. We have until 2.30 pm for this panel. Could you please introduce yourself for the record?

Dr Mendoza: Yes, I am Dr Alan Mendoza, the executive director and a founder of the Henry Jackson Society, which is a foreign and security policy think-tank.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

Q54 The Government’s assessment is that the Bill does not breach anyone’s rights under article 10 of the European convention on human rights, as the ban that it introduces applies only to the public functions of public authorities. For example, councillors, when they are not representing the council, can express their own views and can support boycotts and divestments. Do you agree with that position?

Dr Mendoza: Thank you, Minister. The answer is very simple: yes. I think it is quite obvious that the Bill does not preclude any individual councillor, or indeed anyone working for a public body, from expressing their personal opinion on a boycott or something similar. It merely prevents bodies that really have no jurisdiction in such areas from passing formal motions on them. That is quite clearly laid out in the legislation, and the ECHR would agree.

[Felicity Buchan]

Q Statements of intent to boycott, even when not implemented, can undermine community cohesion, so do you think it makes sense to prohibit statements of intent to boycott, as we do under clause 4?

Dr Mendoza: Yes, again, I agree. First, if you are stopping the ability to boycott, there is no point having the ability to talk about those issues collectively. Secondly, if you have a debate about that, it can inflame community tensions. We have seen lots of examples in the past few years where even discussing these matters—alleging or suggesting that one country might be responsible for x, y or z—lends itself to an increase in community tensions on the ground; people take it as an excuse to go into worse forms of hatred. There is evidence that that has happened. If we are saying that public bodies that are not the UK Parliament or UK Government should not have control over foreign policy decisions, it makes sense to stop them having the ability to talk about the intent to do something that they will not be allowed to do.

[Felicity Buchan]

Q Dr Harris, I do not know if you heard the questions and want to add anything.

Dr Harris: If you could repeat the questions, that would be helpful.

[Felicity Buchan]

The first question was about the Government’s assessment that the Bill does not breach article 10 of the ECHR because it applies only to public authorities while they are carrying out public functions, and private individuals can express views, and choose to boycott and divest. The second question was on clause 4, and on whether stating an intent to boycott has similar impacts on community cohesion to boycotting.

Dr Harris: Thank you. To state my position generally, the goal in clause 1 is broadly okay and compatible with free speech; clause 4 is not. I disagree with some of the Government’s analysis. The explanatory notes state that public bodies do not have article 10 rights. That is certainly true of core public bodies—the police, the NHS, Whitehall—but my understanding is that that is not true of hybrid public bodies, which may well include universities. Certainly, the European Court has held that boycott is, or can be, an exercise of the right to freedom of expression, as in the 2020 case of Baldassi and France, and so free speech rights are certainly engaged. This Bill very clearly targets expressions of political and moral conscience, which is to say the form of expression that is most highly protected by article 10. I think there are some very real problems, and perhaps there will be time to develop my view on what those issues are.

Regarding clause 1, as I say, I think it is acceptable, first, that Parliament sets out the relevant considerations that a public authority may have in mind in making a decision. The public law—the common law—already does that, so I think that is perfectly acceptable in principle. I think it is right as well that the UK should not be embarrassed by perhaps rather adolescent campaigning issues, rather overstated campaigns that perhaps unfairly denigrate friendly countries; I think that is completely understandable.

The problem I have with clause 1 is the justification, and that would go to any assessment by a court were there to be a compatibility challenge. On that justification—that the UK should have a single front or a single, agreed foreign policy—I am not sure that the full range of public authorities owe, or should owe, any duty of fidelity to central Government’s foreign policy. In fact, I think the opposite: that our public debate is likely to be enriched and informed by greater diversity. I think that that justification is questionable and would go into the article 10 assessment were there a challenge.

I very much agree that the second justification—of preserving community cohesion—is a legitimate aim. I think it is entirely foreseeable, and probably has occurred, that some BDS campaigns have been informed by malice against Jewish people. However, it is to be noted that this Bill will do far more than merely target and limit those divestment campaigns that are malicious. It would cover, for instance—and I draw no parallel here with BDS—the anti-apartheid movement of the 1980s.

I will move on to clause 4 because you did raise that. My position is that clause 4 really needs to go in its entirety. To take clause 4(1)(a), which is the prohibition on statements of intent, there is no need—I think it is not necessary either politically or perhaps even legally—to prohibit statements. The mischief that is to be prohibited is the threatened act. The law will already help there. If a local authority were to resolve that it is going to divest the goods of a certain country, there would be the option of a prohibiting order by way of judicial review, and that targets the act. The court would be able to say, “You may not carry out this act that you threaten to carry out.” It is not clear to me that the law needs to go further in prohibiting statements. That is not to say that the law could not go a bit further, but I think there is a question regarding the necessity of this measure and the necessity of interfering with the freedom to make political and moral statements.

Clause 4(1)(b), as you can probably imagine, is the most problematic. I do not think the Government, from what I have seen, have put forward any rationale for why hypothetical statements are a mischief. It seems to me a huge overreach concerning political speech. I see very little harm that it would do, and I think it is going to cause serious defensiveness and caution in debates on the governance of universities and local authorities, which perhaps may be well worth having, but I will leave it there for now.

[Felicity Buchan]

Q I have a few follow-up questions and a couple of points for clarification. I want to clarify that the Bill would apply to hybrid institutions when they are working in a public function but not in a private function.

Dr Harris: Correct.

[Felicity Buchan]

Q You said that clause 4 would affect freedom of speech. Again, I want to clarify that clause 4 applies to the council only when it is talking in a council capacity, and not to the individual councillors when they talk in a private capacity.

Just a few quick follow-up questions. The Bill contains the power to exempt certain countries as time goes on so that foreign policy can be adaptive. Do you agree with that? Secondly, briefly, do you think that the BDS movement has been successful in pressurising Israel?

Dr Harris: Sorry, can you repeat the first question? I am so sorry; it skipped my mind.

[Felicity Buchan]

The first question was about the Bill containing the power to exempt certain countries as time goes on, so it can be adaptive to foreign policy.

Dr Harris: I see. I accept that. Again, I will go to the example of the anti-apartheid movement. I want to make it clear that I think it is entirely wrong to compare the only democracy in the middle east, Israel, to apartheid South Africa, but for the purposes of the Bill, the anti-apartheid movement in the ’80s is relevant. In the debate that occurred there, there was a broad disagreement between central Government and their foreign policy, and a wider civil society movement of churches, trade unions and, eventually, a large number of local authorities —about 120. It was eventually curbed in 1988 with the Local Government Act, but the question is: was that debate and that tension productive? Did it inform the public debate? Did it aid the global movement against apartheid? I think it surely did.

It is beyond doubt that the British anti-apartheid movement led the world outside South Africa. For me, that is a great victory of British decency—of British soft power and, of course, British free speech. Going back to the power that you mentioned, whereby the Minister can, by regulation, add countries to the list, that debate and that soft power would be considerably diminished, especially in their legitimacy, if they were essentially licensed by the imprimatur of the Minister saying, “These are debates you can have.” For me, that would really reduce the power of that bottom-up movement.

[Felicity Buchan]

Q I am conscious of time. Dr Mendoza, do you want to come in on those final questions and then I can hand over?

Dr Mendoza: Yes. I disagree a bit with Dr Harris. I am not for a moment saying that the anti-apartheid movement in civil society was not valuable or successful—it hugely was—but let us focus on what we are talking about: a tiny sliver of institutions looking at the question of boycotts, as opposed to forbidding the discussion of boycotts in public, which sounds like where Dr Harris is heading in this sort of discussion. That is not what the Bill prevents. In fact, you can talk about any foreign policy aspect and any country, even in areas where a local authority or university has no power or authority to particularly affect a policy, and that will not be stopped. We need to focus very much on the narrowness of the Bill, which relates purely to boycotts and the sanctions policy.

Casting our minds back to the 1980s, had that been forbidden, would it have had any effect on the effectiveness of the anti-apartheid movement? I think absolutely not. There was enough out there that would have driven it anyway in terms of foreign policy; there would have been that debate. We are not talking about having any curbs on the freedom of speech of individuals.

I can guarantee that, in today’s society, with the 24/7 focus on social media and with so many outlets to talk about things, all the Bill is trying to do is, essentially, keep authorities that have no particular purpose in looking at specific foreign policy issues in the form of boycotts from wasting their time and public money in doing so. Again, privately, they will be perfectly able to do it: publicly, there is no call for it and there is no need for it, given that it will be covered elsewhere. This House is where you should be debating foreign policy—not in local councils, not in devolved Assemblies. I speak as a local councillor in that regard. I can assure you that were I to be speaking on my area of expertise—foreign policy—in the council chamber of my local authority, my residents would rightly ask, “What on earth are you doing wasting council time like this?”

Let us get back to the focus of what we are trying to do, which is something very narrow, to reflect the proper place of foreign policy in this country and the proper people entitled to make decisions on it, without compromising anyone’s ability to talk about, argue and discuss it, and tear it apart if necessary, in a private capacity.

Dr Harris: If I can briefly follow up, I defer entirely to Dr Mendoza on the effectiveness of the BDS movement: I do not know.

I omitted to say that I accept that the clause 4 prohibition is on a person who is subject to clause 1. The difficulty—and this is perhaps a drafting point—is that clause 1 concerns decisions, and therefore it squarely fits within section 6 of the Human Rights Act. Then, in clause 4, we go to persons who are subject to clause 1. What is unclear to me—and I trust this is not my misreading of the Bill—is when the clause 4 duty bites on that person. Does it only bite on them when they are exercising the decision-making power in clause 1, or does it bite on them if they hold that power? If they generally have that power by statute, are they therefore constantly under that clause 4 duty? The scope of clause 4 is unclear at the moment and, as with any restriction on liberty, it should be narrowly stated and certainly be narrowly construed by the courts.

Dr Mendoza: Dr Harris has reminded me that I did not answer the BDS effectiveness question. It has been entirely ineffective as a campaign globally, so much so of course that it is not shared formally by the Palestinian Authority itself as a policy. That should tell you that this is a fringe movement that has no purchase even with the elected authority within the PA.

Dr Harris: If I could quickly come back—there is a bit of a double act going on with Dr Mendoza—

[The Chair]

Just a reminder that this panel is due to conclude at 2.30 pm and I have three more Members who have indicated that they wish to contribute. If anyone wishes to contribute, please waggle your fingers at me. Do you want to add anything further, Dr Harris?

Dr Harris: Briefly, I agree with Dr Mendoza. The justification here should be the limitation of vires—of the powers—of these bodies. That is the way to justify clause 1 for me. The justification is not, “Get behind Government policy” or “Do not make these moral or political statements”: it is vires and powers. We can come back to that in further questions.

--- Later in debate ---

[The Chair]

Thank you very much. I call the Minister.

[Felicity Buchan]

Q Thank you for being here and sharing your thoughts and experiences, which I imagine are very painful. One of the purposes of the Bill is to say that we should have one foreign policy. It does not prevent our central Government from having sanctions regimes, for instance. Do you agree that foreign policy should be reserved for the UK Government, rather than local authorities making up independent foreign policies?

Rahima Mahmut: All my life, I have been fighting for freedom of speech and the freedom to make decisions. I do believe that foreign policy is not necessarily fair. For example, since 2016 and especially since 2017, mass arrests have started in my country. The UN said that up to 1 million people are in concentration camps but we believe that it could be up to 3 million people. I have lost contact entirely with family members since January 2017. In April, I learned that my sister had died in March—one month earlier—and I was told not to contact anyone in case I put their life in danger. I learned that my brother was in a camp for over two years and released because he was almost dying.

I have been campaigning in Parliament, and it has passed a motion declaring that genocide is happening. The independent UK Uyghur tribunal, led by Sir Geoffrey Nice KC, also found evidence of genocide based on the forced sterilisation, forced abortion, and prevention of future births of Uyghur children. There is also forced labour, family separation, children being taken away, cultural destruction, and so on. We have a huge amount of evidence gathered by the Uyghur tribunal, yet we have not really seen the UK take active policy decisions on trade or anything else.

It really pains me to see this kind of inactivity from the politicians because of the UK’s economic dependency on China and its diplomatic relationship. Our Foreign Secretary visited China only last week, after which I penned two op-eds: one was in The Spectator, in which I said that this is a betrayal of the Uyghurs; the other was in The Guardian. I recommend that you read them if you have time. I laid out the reasons why this is so unfair and why it just does not really align with the human rights that we believe the UK upholds.

In this kind of situation, I do believe that local authorities and other bodies should have those powers. We campaign, for example, about solar panels, an area that is heavily tainted by Uyghur slave labour. We know that local authorities make decisions on buying those products, and we believe that if we can convince the local authorities, they can decide not to buy solar panels tainted by slave labour.

[Felicity Buchan]

Q I am very sorry to hear what has happened to your sister and brother, and I appreciate your passion. The upcoming procurement legislation will further strengthen our approach to exclude suppliers where there is clear evidence of the involvement of forced labour and other modern slavery practices, such as in Xinjiang. Given that, and given that this Bill will sit in harmony with the Procurement Bill, so there will be the ability to exclude suppliers on modern slavery and labour misconduct grounds, are you more comfortable with the situation with this Bill?

Rahima Mahmut: No. For example, we are also campaigning against Hikvision cameras, which are made in China. Hikvision is one of the biggest CCTV companies, and its cameras cover internment camps and the entire Uyghur region. I always call this genocide against my people the first high-tech genocide. We are campaigning against Hikvision because it is complicit in this genocide, but we cannot necessarily prove that Hikvision cameras are made using slave labour. If the Government do not recognise this as genocide, then local governments and public bodies cannot make the decision to boycott or to stop such products coming into this country.

[Felicity Buchan]

There will be the ability to exclude on modern slavery and labour misconduct grounds under the Procurement Bill and in this Bill, but perhaps, in the interest of time, I should allow colleagues to come in.

[Wayne David (Caerphilly) (Lab)]

Q We have a great deal of sympathy with what you have expressed to us this afternoon. One problem that many people have with the Bill is that although it was billed as a Bill to prevent BDS against Israel, it is not country-specific. It applies to all countries, including Myanmar and China, and will have a direct impact on the solidarity that is capable of being shown to the Uyghur minority. It is ironic, really, that although one of the impressive things we have seen over the last couple of years is the solidarity from the Jewish community in Britain with the Uyghur minority, we have this Bill that some would suggest actually prevents local authorities from expressing that collective, community, material solidarity with people who are oppressed in China. Do you think that is a fair characterisation of your concerns?

Rahima Mahmut: First, thank you for that question. I thank the Jewish community from the bottom of my heart for the support we have received—Stop Uyghur Genocide received its first fund from the Pears Foundation. As people who have experienced this absolute horror in the past, the Jewish community can relate and understand the pain.

When it comes to the legislation, I am not a lawyer. I only look at whether a piece of legislation will benefit my community. So far, from my own understanding of this Bill, I do not see that it will have any kind of positive outcome. As I have explained, this is because of the power that China has due to the economic dependency that this country and many others have on it, which is why we could not really mobilise Governments to recognise it and take any meaningful action. Therefore, I strongly oppose this Bill. This is not just me; I represent the Uyghur community, which also opposes this Bill. We do not want this Bill to one day prevent our campaign from being successful.

--- Later in debate ---

[The Chair]

We will now hear from Stephen Cragg KC. We have until 3 pm for this session. Would the witness introduce himself?

Stephen Cragg: I am Stephen Cragg KC. I am a barrister at Doughty Street Chambers specialising in public and human rights law.

[Felicity Buchan]

Q The Government’s assessment is that the Bill does not breach anyone’s rights under article 10 of the ECHR. The ban applies only to the public functions of bodies defined as public authorities, so it would not affect individuals or private companies. It would not affect a councillor acting in an individual capacity—only a councillor who was speaking on behalf of his council as a local authority. Given this, do you agree with that assessment, and that the Bill is compatible with the ECHR?

Stephen Cragg: First of all, it is unclear whether that is the case or not.

That is something which needs to be clarified—if that is the intention, it should be spelt out. The concern is that the right to freedom of speech of councillors speaking about matters in council chambers, for example, might be affected—that is unclear from the Bill at the moment. In article 10, the right to freedom of speech also involves the right of the public to receive information. It is interesting that local councillors, for example, might feel restrictions on saying things in debates in council chambers because they are afraid of falling foul of some of the provisions in this Bill. Michael Gove said in a statement that it does not apply to individuals—on the face of it, I can see that argument, but I think it is very unclear and needs to be clarified if that is the intention.

[Felicity Buchan]

Q Thank you. The Bill provides powers for enforcement authorities to issue compliance notices and investigate and fine public bodies where there is a breach of the ban. These powers are based on existing powers for regulators of public bodies. Do you think the powers given to enforcement authorities are reasonable and proportionate?

Stephen Cragg: I recognise that these are the kinds of powers regulatory authorities often have. There is concern about the fact that there are also judicial and quasi-judicial review remedies in the measure and about the effects of the regulatory provisions, which involve possibly preventing someone from making a statement in advance. There is also concern about the information notices provision in clause 7. I was in the room when the question about legal professional privilege was asked. I cannot see anything in clause 7(8) which provides any protection for legal professional privilege. It was also said that it gives people the power to provide that information, but that is not right either because clause 7 is all about complying with a notice—people do not have any discretion as to whether they disclose the information or not. There are concerns about the provisions in clauses 6 to 10.

I also note that there is no clue at all about the kind of monetary penalty that might be imposed as well—whether it will be something like the Information Commissioner has, which can go to hundreds of thousands of pounds, if it will be £100 or if it will be a rap on the knuckles and being told, “Don’t do it again.” All that needs to be clarified, and it is not clear at the moment.

[Felicity Buchan]

Q On the legally privileged point, the Government’s view is that the information power does not extend to legally privileged information, on the back of the fact that that is a fundamental common law right and would need specific words to override.

Stephen Cragg: In my view, those specific words are there in clause 7(8):

“A person providing information in compliance with an information notice does not breach any obligation of confidence owed by the person in respect of the information, or any other restriction on the disclosure of information (however imposed).”

I do not see how you can get much clearer than that.

[Felicity Buchan]

Q Just to summarise, you would want clarification on that point and on councillors acting in their own capacity.

Stephen Cragg: If that is the intention—that legal professional privilege is excluded—it needs to say that.

[The Chair]

Thank you, Minister.

--- Later in debate ---

[The Chair]

I call the Minister to ask the first question.

[Felicity Buchan]

Q One of the motivations for the Bill was to have one reserved foreign policy. Given that, do you agree that it is vital that this ban applies to the devolved Administrations and devolved public bodies? Adam, since you are sitting in Scotland, may I go to you first?

Professor Tomkins: Yes, absolutely. I agree strongly that the Bill should have UK-wide extent and application and should apply to all public bodies throughout the United Kingdom, including devolved Administrations—arguably, perhaps especially devolved Administrations. The Bill has two fundamentally important policy motivations. One is with regard to community cohesion. Community cohesion is a responsibility of the United Kingdom Government and, indeed, of the United Kingdom Parliament throughout the whole of the United Kingdom. The other is of course to safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the United Kingdom Government, accountable as it is to the United Kingdom Parliament. The devolution settlement sits on top of those constitutional fundamentals and is not an exception to those constitutional fundamentals. For all those reasons, it is vital that the Bill applies and extends to all four nations of the United Kingdom.

[Felicity Buchan]

Andrew or Francis, do you want to come in?

Professor Tettenborn: I certainly back what Adam Tomkins has said. If we put the boot on the other foot, imagine that we are negotiating with the State Department over something very delicate, and the answer comes back from the State Department, “We will give you support—we will put pressure on this country—but we can’t answer for California or Colorado, who might have a different official view.” I do not think we would be very happy about that. Again, we could ask the German Government and they could say, “We are of this view, but the Government of Bavaria or Baden-Württemberg think differently.” We owe it to our foreign partners to speak with one voice, in the same way as we might expect them to.

Francis Hoar: In principle, I agree with that. I do have concerns about the Bill on which I shall extend later, but in principle yes, the United Kingdom should speak with one voice. I think it is fair for Her Majesty’s Government to deprecate and to attempt to restrict, within their powers and within the devolutionary settlement, as I think they are, the attempt by the Scottish Government in particular to have a separate and independent foreign policy through having missions abroad and making statements and, perhaps, investment decisions.

It is also appropriate to remember that there used to be a convention that when speaking abroad, Her Majesty’s Opposition would not contradict the foreign policy of the day. That is not to say that they did not, as they of course did, object to foreign policy in Parliament, when legislation was proposed and also in the sense of Government decisions. That was something that Clement Attlee and others were extremely keen on furthering. I regret that in the past 20 years in particular, and perhaps particularly since 2016, that has not been something with which Her Majesty’s Opposition have complied. They frequently negotiated with representatives of foreign states in the Brexit process, which I think is regrettable. That goes well beyond the scope of the Bill, but I think the policy objective of ensuring that the UK speaks with one voice is an appropriate one.

[Felicity Buchan]

Q Do you agree that in order to ensure that the ban operates effectively, it needs to cover a wide range of public institutions, including universities?

Professor Tettenborn: I am probably in the firing line here as I come from a university.

[Felicity Buchan]

Yes, absolutely.

Professor Tettenborn: I think it probably should, but perhaps for reasons different from those for other public authorities. The issue of free speech in universities is very much an issue of free speech for individual scholars within those universities. It seems to me rather inappropriate that a university should have a corporate view on a particular matter of foreign policy. It should, if you like, hold the ring between individual academics. So when it comes to universities I think there is a specific justification.

When it comes to public authorities, I simply go back to the idea that public authorities should regard it as off limits—ultra vires, if you like—to have their own foreign policy and their own views on what individual foreign Governments should be doing. That is particularly because, as was mentioned earlier, if you have, for example, large numbers of people from India and Pakistan in a particular local authority area, there is nothing that is going to make dissension worse than a public authority that is seen to favour Pakistan, say, over Kashmir.

[Felicity Buchan]

Francis or Adam, do you want to come in on that point?

Francis Hoar: Maybe I will let Adam conclude on this, and I will be much more brief. I am ambivalent about universities, to be honest, for the reasons that Dr Harris, whose evidence I heard, set out. I appreciate your point, Minister, which is that the legislation applies only when the university is acting as a public body. I appreciate that distinction, which can perhaps be fine. That is the kind of issue that might be teased out in the courts, but I suppose that is part of the nature of such a Bill. I sympathise and agree, to a certain extent, with Professor Tettenborn’s point about it not really being appropriate for universities to have corporate identities, but whether that should be in public legislation is a different matter.

Professor Tomkins: I agree with what Andrew Tettenborn just said. I should probably have said at the beginning that I am also a member of the Free Speech Union; indeed, I am on its Scotland advisory panel. I do not like disagreeing with Bryn Harris, but I am afraid I disagree with quite a lot of what he had to say about the Bill this afternoon, not only with regard to the universities question, but with regard to clause 4 more generally.

In the law of the United Kingdom, we do not have a single definition of the public sector or the public sphere, but we do have a very workable template that has been used for more than 20 years now in the Human Rights Act, which is what the Bill validly seeks to borrow from. That brings within its scope hybrid authorities such as universities when they are acting in a public capacity. It is a way of understanding the scope of the public sphere or public sector that has not caused particularly difficult problems in litigation at the High Court or at a higher level in the more than 20 years during which the Human Rights Act has been in force. That is not to say that it has not been litigated at all—of course it has—but it has not caused particular problems.

I think it eminently sensible that the Bill seeks to use that template in this context. I am very relaxed about universities and other public authorities being captured within the scope of the Bill in the same way as local authorities and devolved Administrations. I do not have any issues or concerns in that regard.

[Felicity Buchan]

Q So you are happy with how the Bill is drafted to apply only to public institutions, not to private individuals.

Professor Tomkins: Absolutely, yes.

[Felicity Buchan]

Q Does anyone on the panel have a view as to how the Bill compares with other examples of anti-BDS legislation in other jurisdictions across the world?

Professor Tomkins: Perhaps I can address that question, Minister; I have done quite a lot of work on how the Bill would compare with the position in France and in a number of the states of the United States.

The Bill is very modest indeed in comparison with what has been happening in France and in the United States. French authorities, for example, are seeking to criminalise various forms of BDS activity, which the Bill emphatically does not. In the United States, where I think the states that have enacted anti-BDS legislation are now in the majority, that legislation varies from state to state but its general tenor is that public authorities are prevented by force of law from contracting at all with American companies unless those American companies declare that they do not boycott either Israel or the occupied territories. Again, that is going much further than the Bill will go in the UK. When understood comparatively in terms of the way in which our closest friends and allies are taking legal action to clamp down on very counterproductive and unhelpful BDS campaigns, the Bill is very modest, but it is not without importance and is not ineffective.

It is worth remembering—I listened to the exchanges with other witnesses earlier—that of the boycott campaigns that have been targeted against a foreign power by public authorities in the United Kingdom, every single one has been targeted at Israel, so analogies with what happened 30 years ago or more with regard to South Africa are perhaps a little inapt. It is true that the Bill is of general application and is not specifically about Israel, but the facts on the ground are that, as matters stand, every single one of the publicly funded anti-BDS campaigns in the United Kingdom has been targeted at Israel.

The Bill is very important and I unqualifiedly support it, but in comparison with what our closest friends and allies are doing elsewhere in the world, it is a rather modest measure. It could—some would say should—have gone a lot further in clamping down on BDS activities, which have the effect not only of undermining the cohesion of UK foreign policy, but of significantly undermining community relations.

[Felicity Buchan]

Q Does the rest of the panel want to come in, either on the comparative point or on the point about ECHR article 10?

Professor Tettenborn: I might have something to say about ECHR article 10. I am not as much of a human rights expert as the gentleman from Doughty Street Chambers—I give way to him pretty willingly—but I do not think that there is a strong article 10 right in public authorities speaking as public authorities. Public authorities are normally the people who get sued for breaking article 10, rather than the people who sue because somebody has stopped them saying what they want. As I read the Bill, it is very carefully drafted to say that if a councillor or a Scottish Minister says, “I think this is a rotten piece of legislation and I think Israel, in any decent society, ought to be made a pariah,” and makes it clear that they are speaking in a private capacity and not officially on behalf of the council, they are in no danger at all.

Francis Hoar: I defer to Professor Tomkins on the international comparisons. In respect of article 10 of the ECHR, there are three stages: first, whether it is engaged; secondly, whether the Bill contravenes article 10, paragraph 1, which concerns whether or not it is a legally enforceable prohibition; and, thirdly, whether the Bill is proportionate.

In some respects, in my view, the Bill does not engage article 10. I do not believe that the power to make investment decisions is engaged by that. On the other hand, statements clearly are. Clearly, the Bill in itself would prohibit the conduct, and it is sufficiently clear for it to be very unlikely that the courts would be forced to interpret the legislation in such a way that was compatible, even if it strained the usual interpretative norms.

So article 10, paragraph 1 does not apply; the question is whether the Bill is proportionate. Dr Harris referred to one recent Strasbourg court decision, Baldassi, which concerned a non-public body. In that case, it was found that prohibitions by the French state on that non-public body were disproportionate. But in the earlier case of Willem v. France, which concerned a mayor, there was no violation. In other words, the criminalisation—the legislation went much further, as Professor Tomkins said, even back in 2009—was found to be proportionate because of the community cohesion point.

That said, I agree with Dr Harris about clause 4. I do not see the need for it. The mischief the Bill is designed to address is divestment, procurement decisions and so on. I do not see why it is necessary to prohibit councils from saying that they would like to divest if they were lawfully able to do so, and even that they intend to do so. As Dr Harris said, if a council passes a resolution that has effect, that is ultra vires. I agree, as I said at the outset, that it is desirable that the United Kingdom speaks with one voice and that public bodies that do not have foreign policy powers do not contravene that, but I do not see the necessity of clause 4.

I do not think the clause would necessarily be disproportionate. The Willem v. France decision in the Strasbourg court suggests that it would be found to be proportionate, and in any event the background fact speaks against disproportionality—if it were to come to a challenge, the background fact is that this is a public body that has no powers in respect of foreign policy—but I do not see the need for clause 4, and I would advise the House to reject it.

[Felicity Buchan]

Q Do you not think it is needed for community cohesion? These statements can be very inflammatory.

Francis Hoar: Yes, of course they can, but as Professor Tettenborn said, that does not stop councillors making them on the campaign stump, and it does not stop the Mayor making them in a personal capacity. I am afraid I do not find that a convincing argument at all.

[Alex Norris]

Q I want to follow that point through, with all three panellists, if possible. You have all indicated support for the Bill in generality, and in particular for what clause 1 tries to achieve. Do you think you have to have clause 4 for the Bill to be effective?

Francis Hoar: I have answered that.

--- Later in debate ---

[The Chair]

We will now hear from Andrew Whitley, chair of the Balfour Project. We have until 4 pm. Would you introduce yourself for the record, Mr Whitley?

Andrew Whitley: My name is Andrew Whitley. I am the chair of the Balfour Project, a Scottish registered charity that advocates for peace, justice and equal rights in Israel and Palestine. We have a particular focus on Britain’s responsibility, historically and currently, for the situation Israel and Palestine. I myself have followed the situation for almost 40 years now, in different professional capacities, including living in the region—in Gaza and Jerusalem—for seven years.

[Felicity Buchan]

Q In your written evidence, you raise concerns that the Bill could prevent ethical procurement or divestment decisions. Do you acknowledge that there are exemptions for the likes of labour-related misconduct and environmental misconduct, and that the Bill relates only to moral or political disapproval of countries and territories, so it would not in any way prevent, for instance, divestment from fossil fuels?

Andrew Whitley: Yes, that is the case, but I think it is difficult to draw a distinction between divestment in certain areas and not others. It is possible to have divestment from Russia over its invasion of Ukraine, for example, and we can refer to aspects of boycotts and divestments that go back to the time of the slave trade. There is a long and distinguished record of being able to use these tools. I am not saying that our organisation advocates for BDS to be applied in this particular case, but we do advocate for the right of others to speak and to say that this is a legitimate tool. What concerns us as an organisation is that this Bill singles out Israel and the Palestinian territories as the sole area in which it applies, and our concern relates in particular to the conflation of Israel proper with the occupied territories in the Golan Heights, the west bank, Gaza and east Jerusalem.

[Felicity Buchan]

Q The Bill will apply to all countries; the only reference to Israel is that if in future you want to exempt countries, that can be done by secondary legislation except in the case of Israel, which requires primary legislation. The reason for that is that we want greater parliamentary scrutiny, because, as we have heard from other witnesses, Israel has been the sole focus of so many BDS campaigns. Given the fact that these campaigns are targeted against Israel, we think that greater level of parliamentary scrutiny is required. In the light of that, do you feel more comfortable?

Andrew Whitley: I would not advocate in favour of BDS against Israel per se. I would argue that BDS is a legitimate tool to make a distinction between Israel and the occupied territories. I think that is an important distinction that always has to be maintained. In our view, this is the central flaw in the way the Bill is drafted.

[Felicity Buchan]

Q So that I understand your position, do you think that BDS is additive in the middle east? Every witness we have heard so far says that BDS does not add anything to the situation regarding peace in the middle east, and that actually its effect is negative because it leads to problems with community cohesion in the UK.

Andrew Whitley: I am not sure that I agree that it creates community friction in this country. I recognise fully that there are those who are concerned about anything that could lead to antisemitism, and that is a scourge that must be utterly condemned, but I am not sure that advocating for BDS does that. It is a legitimate tool of non-violent action to influence a Government’s behaviour when they are committing illegal acts, and the occupation of a foreign country or a foreign territory is an illegal act, whether it is in Ukraine or Palestine.

[Felicity Buchan]

Q The Government’s view is that the settlements are illegal; however, we do not support boycotts and divestments against Israel because we do not think that they contribute towards peace in the middle east. Do you disagree?

Andrew Whitley: I would not advocate for boycotts against Israel.

[Wayne David]

Q Andrew, you will have heard the last question in the last session, which touched on foreign policy. I made a statement that foreign policy is a non-devolved matter, but human rights is an issue that belongs to central Government, local government and devolved Government—it belongs to all citizens in a sense. Is that your view as well, and if it is, would you care to elaborate to say why you have fundamental concerns about this piece of legislation?

Andrew Whitley: Human rights are universal, and they need to be applied even-handedly and in a systematic fashion; there can be no quarrel or disagreement over that. Any attempt to try to make distinctions over how human rights should apply in one territory or another undermines the authority of those who are attempting to enforce them, and it makes a mockery of the application of human rights if they are applied selectively. I believe it is the responsibility of all citizens, as well as public bodies, to be able to apply ethical, moral human rights considerations in their decisions, and those can apply to political matters and they can apply to other matters. Human rights also cover the provision of shelter, the provision of water supplies or adequate education; these are all basic fundamental human rights. I think it is the responsibility of all bodies in this country to take human rights considerations into account and to apply them in a consistent manner.

--- Later in debate ---

[The Chair]

We have until 4.30 pm for this session. Could the witnesses start by introducing themselves for the record?

Mark Beacon: My name is Mark Beacon. I am an international officer at Unison. Unison is the largest trade union in the UK, representing 1.3 million workers working in public services. Although our members are UK-based, we take a very keen interest in and recognise the importance and value of working collectively internationally to uphold human rights and workers’ rights. That is one of the key reasons why the Bill is of interest to us.

Rozanne Foyer: My name is Rozanne Foyer. I am general secretary of the Scottish Trades Union Congress. STUC is Scotland’s federation for trade unions. We have over 600,000 members in Scotland.

[Felicity Buchan]

Q First, can I ask whether you support the BDS movement?

Mark Beacon: Unison has consistently advocated for a two-state solution—for a viable Palestinian state alongside Israel. We support boycott, divestment and sanctions as a method to put pressure on the Israeli Government to bring about peace and a viable two-state solution. In terms of the work we are talking about here around pension fund engagement and investment, we have been calling for the local government pension scheme to begin the process of divestment from companies on the United Nations list of business enterprises involved in and with the illegal settlements, and to begin the process of time-limited engagement with other companies that are contributing to violations of human rights. Of course, our focus is very much on the Occupied Palestinian Territories and upholding human rights and international law within that context.

[Felicity Buchan]

Q We have heard an awful lot of evidence today that the BDS movement has not contributed to peace in the middle east, but that it has simply targeted Israel and led to community friction in the UK. Do you agree with those sentiments that have been expressed very broadly today?

Mark Beacon: If you look specifically at our work on this, it is very much targeted at the Occupied Palestinian Territories. We are focusing on companies that are contributing to a grave violation of international law and breach of the Geneva conventions. It is also worth adding that BDS is not something we have used exclusively in the context of Palestine and the Occupied Palestinian Territories. You can look to examples such Myanmar and Western Sahara and, historically, countries such as South Africa. It has played a big role. Trade unions throughout the world use it. When it comes to boycott, divestment and sanctions—mainly divestment in this case—what we do is listen to the calls of our trade union partners around the world and ensure that what we are doing is reflecting their demands in these areas.

[Felicity Buchan]

Q Rozanne, can I bring you in on those points?

Rozanne Foyer: The STUC has a long-standing policy of support for a peaceful two-state solution to the Israel-Palestine conflict. We also have, since 2009, supported BDS as a policy and a campaigning method. Basically that has been part of our international campaigning for decades, not just in relation to Israel. Fifty years ago we supported Rolls-Royce workers who refused to repair the aeroplane engine—[Inaudible.]

[The Chair]

Rozanne, I do apologise. We are struggling to hear you. Do you have a microphone available that you could plug in?

Rozanne Foyer: No, I do not.

--- Later in debate ---

[The Chair]

That is a bit better.

Rozanne Foyer: Through the 1980s, we played a key role in the anti-apartheid movement. Boycott, divestment and sanctions also played a key role in that movement. The trade union movement in Scotland was quite instrumental in encouraging local authorities such as Strathclyde and Glasgow City to take steps to support Nelson Mandela. That was at a time when he was still considered a terrorist by the UK Government. I just want to make the point that, generally, support of that type of activity is something that our movement has been involved in.

In 2009, we sent a factfinding delegation to Palestine. It talked to all parties—Israeli trade unionists and Palestinian trade unionists—and produced a report. On the back of that report, we agreed a policy of boycott, divestments and sanctions against the Israeli state. The aim was to create pressure to end Israel’s illegal occupation and establishment of settlements classed as illegal under international law. It was also to campaign against the violation of the human rights of Palestinians by the Israeli state as defined by the United Nations. We worked with our affiliates to support BDS strategy and we produced guidance on it in 2019. Our BDS policy is fully supported by the Palestinian General Federation of Trade Unions.

In 2022, the STUC supported a delegation from Dundee Trades Council to Palestine, which met again with both Palestinian and Israeli trade unionists. Following the reports received from that delegation about the situation on the ground for workers, and the continued human rights violations of Palestinian workers, the STUC Congress reaffirmed its policy to support BDS in 2023. We are not formally affiliated with any BDS movement, as you described it, and we do not wish our support for BDS to be interpreted as blanket support for any of the policies or views of other bodies or organisations that might identify with the wider BDS movement.

[Felicity Buchan]

Q Thank you. I understand that one of Unison’s concerns is freedom of expression for elected officials. The Government’s view, which I think has been backed up by most of the legal witnesses we have heard today, is that the Bill does not apply to private individuals or private companies, so it does not apply to elected councillors if they are operating in a private capacity. In the light of that, do you not think that councillors should be focused on running their local authorities as opposed to making foreign policy statements?

Mark Beacon: We do not see this as an issue about foreign policy or local authorities having a jurisdiction over any form of foreign policy. What it is about is public bodies upholding internationally recognised norms regarding human rights, labour rights and international law.

[Felicity Buchan]

Q Do you think that the BDS movement has contributed towards peace in the middle east?

Mark Beacon: If you look at the situation now and how it has eroded and if you look at the plans of the current Government—the coalition agreement, for example, has a section in it that focuses on annexation of huge swathes of the west bank—Palestinian society is in a very difficult position at the moment, because the prospects for peace and a viable two-state solution sadly seem to be diminishing. We hope that international pressure and voices from the trade union movement and other civil society organisations will raise that up the international agenda and bring about more realistic prospects of a viable two-state solution.

[Felicity Buchan]

Q Do you think that one local authority in the UK can raise that up the public agenda? We have seen with Russia and Ukraine that we need concerted international action at a Government level.

Mark Beacon: Of course, it takes many small steps. In local authorities, we are talking generally about a response to the requests or concerns of members of pension schemes. Local authorities and pension committees take on those legitimate concerns of members on how investments are made, and act on those. A single local authority will of course not make a massive difference, but if that is taking place across the UK and internationally, it will add to pressure and encourage the UK Government to take a stronger position on some of the issues.

[The Chair]

Five Members have indicated that they would like to ask questions, and we need to conclude by 4.30 pm—just so everyone is aware.

Economic Activity of Public Bodies (Overseas Matters) Bill (Third sitting)

Felicity Buchan Excerpts

Committee stage
Thursday 7th September 2023 Public Bill Committees

[The Chair]

You are clearly a very busy man.

Richard Hermer: That is very kind of you.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

Q116 As we know, the Bill does not in any way change the UK’s foreign policy approach to the middle east. Would you agree that the Bill is in line with the Government’s obligations under international law?

Jonathan Turner: Yes, I would. I would go further and say that it has the beneficial effect of securing the UK’s compliance with international law, particularly with World Trade Organisation agreements, which impose restrictions on the UK central Government and a very wide range of public bodies. The Bill and its enforcement will ensure that activities or decisions of subordinate public authorities will not put the UK in breach of, particularly, the Government procurement agreement, which is part of the World Trade Organisation collection of agreements.

[Felicity Buchan]

Steven?

Steven Barrett: Yes, although I hesitate to reply on that because complying with international law is a political position. What I would perhaps like to make clear and explain to the Committee is our constitution and how we work. It is really important that this is understood. It was clarified recently by the Supreme Court, so we are back to now understanding the constitution, and we have a unique relationship with international law. If you wanted, we could all go to the British Museum and look at some 2,500-year-old international law—in fact, it is older than that. There are great masses of it. Absolutely no legal jurisdiction in the world makes all of it binding on that jurisdiction.

If you take a European-style constitution after the war, it will use a constitutional court to choose which bits of international law it wants and does not want. It makes it the job of its judges and courts to do that. When we were in some constitutional confusion after coming out of the EU, I wondered whether that was the system that we would use, but what then happened was quite clear.

You may all remember the Northern Ireland case about the impacts of the protocol on the Acts of Union: it went to the courts, and the courts very clearly said, “No, this is not for us.” We are clear that we do not have a continental-style system in which a court can break international law or exit it for us. We have a system where you deal with it. This Parliament deals with international law, and we draw a line that we call incorporation.

Incorporated international law is binding upon us. You will all remember Miller 1 and the fuss that the Government had where they pretended that they could get out of the EU without passing an Act. No! The part of international law that made up the EU was incorporated international law. To get rid of incorporated international law, they had to use an Act of Parliament. If it were unincorporated, that would be entirely different.

That is the line that we draw. It is really important that people start remembering it. We have not really needed to know about it since the ’60s. In his speech clarifying this, Lord Reed, the President of the Supreme Court, was very forgiving: he just called it a misunderstanding that had arisen. I like to call it a confusion, because nobody should feel guilty about this: these are bits of the constitution that we have not had to wield for decades. How was anybody supposed to know instantaneously that when we left the EU, this was what would happen? But that is what happened.

It is the role of Parliament, not Government, to control the operation of international law, and you do that through Acts of Parliament. This Bill is lawful—of course it is—because it is simply a mechanism for doing that. In his most recent note, I note that Mr Hermer concedes that. The only relevant part to come out of a lawyer’s lips is whether you can or cannot do something; whether you should or should not is entirely for you. He says that you can, and I think that that is enough from any lawyer.

[The Chair]

Given the constraints on time, I will bring in other members of the Committee. If there is time at the end, I will bring the Minister back in.

[Felicity Buchan]

I just have a quick segue from that.

[The Chair]

A very quick one, then.

[Felicity Buchan]

Q Today we will be hearing from Richard Hermer KC, who has provided legal advice to the Labour party. Could you quickly give your views on that advice? I turn to Jonathan, since Steven has already addressed that.

Jonathan Turner: Most of his advice, I think, is wrong. I have set out detailed reasons why his opinion that was published and circulated at the time of Second Reading was wrong, but I would like to take the opportunity to address the note that he sent round last night, because I am afraid to say that it is still wrong.

One of the points that he made before claimed that this Bill would effect a profound change in the autonomy of local government. That is just not correct: there are existing, very substantial restraints on the autonomy of local government when it comes to procurement and investment. Some of those will be replaced by the Bill and some will continue, but it is simply not the case that this makes a sudden and enormous change. He has accepted that section 17 of the Local Government Act 1998 effected a substantial restriction on local government bodies, but he has ignored—even though I have sent him two emails pointing this out—the EU legislation, which effected a very substantial restriction.

He goes on to say that the Local Government Act applied only to local government bodies, not to other public authorities, but the EU legislation applies to a very broad range of public authorities. The regulations implementing the EU directives in England and Wales and Northern Ireland are to be repealed by the Procurement Bill, which is in its final stages. It does not affect the regulations implementing the EU directives in Scotland, which will apparently continue in force; the memorandum from the Scottish Government to the Scottish Parliament suggests that that will continue to be the case.

The position is that this Bill effectively replaces that EU legislation as far as England and Wales and Northern Ireland are concerned, within its terms, in relation to territorial matters. What the Bill really does—the most important aspect of the Bill—is transfer a matter that was regulated by EU law into a matter that is regulated by national law, and set out the national law governing this particular matter. It is part of the Brexit agenda of, if you like, taking back control: you may agree or disagree with the decision that the British people made, but it was made. A major part of the function of this Bill is to replace pre-existing EU-based legislation with UK- based legislation, together with the Procurement Bill.

--- Later in debate ---

[The Chair]

To the other two witnesses, it might be helpful in terms of our time constraint if you could initially confirm whether you are happy with the evidence already given, and if not, please say so. Secondly, could you raise any additional points that you do not think have come out in the first response? I hope that is clear.

Dave Timms: I agree entirely with Yasmine’s comments. Hopefully we will get to talk specifically about the environmental implications, but I would add to her answer the pernicious way clause 1 is constructed and the impact that will have on civil society organisations going about their reasonable activities to try to create environmental or social change. We have heard a lot of the witnesses say that it does not have gagging implications or free speech implications, but the actions of civil society organisations and members of those decision makers are drawn in by the nature of clause 1 and subsection (7), which talks about “any person seeking to persuade the decision-maker”.

This is the state impinging on the activities of civil society organisations that are trying to achieve meaningful social change and trying to ensure that their money, their local authority or university is not complicit in driving destructive human rights or environmental activity. In that sense, this is a direct attack on the ability of civil society to go about the activities we would consider to be legitimate.

Peter Frankental: I totally agree with Yasmine and David. Public procurement in the UK, according to the OECD, accounts for 14% of GDP. That is enormous potential leverage to incentivise ethical business. That leverage is largely being lost because of the disincentives that Yasmine referred to. Let me give you one example of why the disincentive is so great. If a public body—say, an NHS trust—were to decide not to tender with a company in Malaysia, or a contractor in the UK that sources from Malaysia, and source rubber gloves from a factory that had been linked to human rights abuses, that would implicate the state of Malaysia. Under international law, states have a duty to protect, and that means holding companies accountable. If a company is involved in human rights violations or labour rights violations, the state has to some extent failed in its duty to protect, so disapproval of foreign state conduct is invoked. I do not think that the public bodies will want to go anywhere near giving effect to their human rights due diligence findings, because the risk and cost to them would be too great.

[Felicity Buchan]

Q I have two questions, so perhaps you can be brief on the first one. The first is quite simple: are you supportive of the BDS movement?

Yasmine Ahmed: As a matter of principle and policy at Human Rights Watch, we do not take a position on BDS. What we do say very clearly is that individuals, and whoever wants to, have the right to engage in BDS. It is part of their right to freedom of expression, association and assembly.

Dave Timms: For us, the position is exactly the same.

Peter Frankental: We do not take a view on BDS either, but we support the right of people to advocate for BDS. Can I just expand on that a little bit? More widely, we see the situation where human rights advocates and human rights defenders all over the world are delegitimised and stigmatised because of their human rights advocacy. All kinds of pretexts are given for this, such as offending public morals, being disloyal to the state and—as in this particular case, with this legislation—racism and antisemitism.

There is no reason in principle why any human rights advocate should not advocate for the human rights of Palestinians or criticise the human rights record of the state of Israel, and they should not be tarred with the brush of racism or antisemitism. That is a very dangerous road to be going by. If that approach is taken, will human rights advocates who draw attention to human rights violations of the Rohingya in Myanmar and the track record of the Government of Myanmar be accused of being anti-Buddhist? Will those who criticise the human rights record of the Indian Government with regard to the treatment of minorities be accused of being anti-Hindu? What of those who criticise human rights violations in the Gulf states? Anyone who advocates for BDS, which is a peaceful, non-violent means of achieving change and holding Israel accountable for human rights violations—Israel has enjoyed a considerable degree of impunity over the years—should be able to do that without being tarred with the brush of racism or antisemitism.

[The Chair]

Minister, do you have a quick follow-up?

[Felicity Buchan]

Q You have raised concerns that the Bill may prevent ethical procurement decisions, but would you not agree that there is nothing in the Bill that prevents, for instance, the divestment of fossil fuels, provided that it is not country-specific, and that there are numerous exceptions in the Bill such as on labour market misconduct and environmental misconduct? We are very much alive and dealing with ethical procurement decisions here.

[The Chair]

It is an agree/disagree question.

Dave Timms: I am afraid that I completely disagree with the assertion that there is any protection whatsoever for fossil-fuel divestment campaigns. We are extremely concerned about the chilling effect that the Bill could have on those. You have said that fossil fuels are not specifically mentioned, but I am afraid that the Minister does not have the ability to say what is excluded because of the construction of the first clause, which mentions

“a reasonable observer of the decision-making process”.

In fact, the Department’s own delegated powers memorandum, in terms of contracting with suppliers, talks about being “affiliated with certain countries” and divestments from “organisations” that are affiliated “with certain countries.” So if we are talking about divestment of fossil fuels from, say, Saudi Aramco, Equinor, Petrobras, Gazprom or other companies that are highly associated with a foreign Government, we think that will be brought very quickly into the remit of the legislation.

Also, as I said before, because it bites on the way people go about campaigning, and all the statements made during that, you will often see arguments for fossil fuel divestments being couched in terms of getting off fossil fuels because of the damage of climate change, but also because of the record of particular regimes. Those decisions could very quickly be blocked by this legislation. So I see no reassurance whatsoever that it would not have a significant impact on fossil-fuel divestment.

Nor do we take any reassurance at all from the exemption around environmental misconduct. It applies only to illegal environmental harm, yet so much environmentally destructive activity is conducted lawfully. We can look at something like the due diligence discussions that happened during the Environment Act, where the limitations on reporting on illegal deforestation were revealed because so much of the deforestation due to soy in somewhere like Brazil happens entirely lawfully. Or you can take something like Indonesian palm oil, where the legal status of land is extremely complicated and it becomes almost impossible to determine what land conversion has happened legally or illegally. How can a local authority or a public body possibly be expected to navigate that kind of complexity? What they will do is say that this legislation blocks them. So I am afraid that I do not accept your point.

--- Later in debate ---

[The Chair]

Q We will now hear oral evidence from Richard Hermer KC from Matrix Chambers. We have until 12.45 pm for this session. Could the witness introduce himself for the record please?

Richard Hermer: Good afternoon, Sir George, and members of the Committee. My name is Richard Hermer. I am a barrister, as you have said, at Matrix Chambers. My areas of expertise most relevant to this Committee are in public law and international law, including international humanitarian law. I advise and represent a wide range of individuals, companies and, indeed, Governments, and I lecture on those topics both here and abroad.

[Felicity Buchan]

Q In your advice, you argue that the Bill places unprecedented restrictions on public authorities, but would you not agree that there are already substantial restrictions on public authorities, for example, to ensure good value for money or to comply with the UK’s obligations under the Government procurement agreement?

Richard Hermer: Good afternoon, Minister. Of course, law imposes on all decision makers—be it local authorities or public bodies—a range of restrictions through law on their decisions, whether it is a purchasing decision or any other type of decision. That is what the legal framework does. I have identified in the two written opinions why aspects of this Bill are unprecedented in respect of its impact on human rights and international law. I agree with you as a matter of generality, but I disagree with you, Minister, as to this particular Bill.

[The Chair]

I am not going to bring the Minister back in. We have only 15 minutes for this session.

--- Later in debate ---

[The Chair]

Q Finally, we will hear oral evidence from Melanie Phillips, a columnist for The Times. For this session we have until 1 pm. For the purposes of the record, could the witness briefly introduce herself?

Melanie Phillips: I am Melanie Phillips. I am a British journalist and I spend much of my time these days living in Israel.

[Felicity Buchan]

Q The BDS movement almost exclusively targets Israel. Can you talk about the effect of the BDS movement on the Jewish community and on community cohesion?

Melanie Phillips: Many people, pretty understandably, draw a distinction between criticism of Israel and antisemitism. However, my view is that what we are all talking about when we talk about concerns over the way Israel is treated in public discourse is not criticism but a unique campaign of delegitimisation and demonisation.

Now, it should not follow that, even if you demonise the state of Israel, British Jews get it in the neck. But it is a fact—it is on record—that every time the public prints are full of not just criticism of Israel’s behaviour but a presentation of Israel in which it is a unique human rights abuser in the region, attacks on British Jews, both verbal and physical, go up. So there is in practice—whatever the reasons you may adduce—a complete connection between the two. In my view, that is not really surprising. For many people in this country and elsewhere, their understanding of Judaism, the Jewish people, Jewish history and the connections between all those things and the land of Israel is extremely limited. Many people do not understand how intimately Jewish identity—Jewish religious identity—is wrapped up with the land of Israel.

For all those reasons, a boycott movement that stigmatises Israel, singles it out for treatment afforded to no other country and identifies it, therefore, inescapably as a unique evil in the world must have an impact on the Jewish community.

[Felicity Buchan]

Q I have one quick follow-up question. There has been a lot of talk about clause 4, which prohibits statements of intent to boycott. Would you agree that we need clause 4, because a statement of intent sows community division without achieving anything?

Melanie Phillips: Yes. A statement of intent is clearly no more or less than that, but the evil of a statement of intent is that it is a statement of delegitimisation—a statement that Israel is uniquely evil, that it uniquely requires this kind of approach. Therefore, any Jewish person in Britain who supports Israel is deemed to be fair game, and any Jew is deemed to be fair game because people assume, rightly or wrongly, that they identify with Israel.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

Q I understood the Bill to be largely about the Conservative party meeting its manifesto promise to address BDS—in fact, the Prime Minister restated that recently. If that is the main purpose of the Bill—and I have to say I am in favour of that—do you think we need the exemption that means that Israel and the Palestinian territories are the only places that the Secretary of State cannot regulate for? Does it add anything extra to the Bill?

Melanie Phillips: I think there is no contradiction between the two. As you say, the Bill is the fulfilment of a manifesto commitment. The manifesto commitment is a broad one, and the Bill is a broad one, as you heard from your previous witnesses. There are exemptions of different kinds, and the particular exemption you are talking about, which singles out Israel, is done for a particular reason: in a Bill that deals generally with boycotts, there is one boycott that stands out as unique, which is the boycott movement against Israel. It has characteristics that do not apply to any other action taken against any other country, group or cause. In the view of the Government, and I agree with this view, it is a uniquely evil impulse, designed uniquely to destroy Israel as the Jewish state—as the Jewish homeland—and with malign potential repercussions on the Jewish community. Consequently, because it is a unique situation, it requires a specific exemption, as it is so bad that it cannot be ever thought that it could ever happen.

Economic Activity of Public Bodies (Overseas Matters) Bill (Fourth sitting)

Felicity Buchan Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to see you in the Chair, Sir George, and to speak to amendment 3, which stands in my name.

We have now moved to the short but important process of line-by-line scrutiny of the Bill, which is itself short but important, with just 17 clauses and a schedule. In the high-quality Second Reading debate, we saw the significant strength of feeling among Members across the House. Frankly, there was not an even party political divide, which always makes things a bit more interesting. I suspect that colleagues’ mailbags, like mine, have been full of strong views from their constituents.

On Second Reading, the Opposition tabled a reasoned amendment setting out our significant concerns about the Bill, which very much start with clause 1. It is a long-standing Opposition position that we do not support boycott, divestment and sanctions-type activity against the state of Israel. As my hon. Friend the Member for Caerphilly said on Thursday, we are implacably imposed to it. I cannot improve upon that sentiment, which is also the view of the Government. It should not have been hard, if that was what the Government wanted, to build consensus around a proportionate set of regulations that would tackle the issue. Instead, clause 1 and the Bill generally are needlessly broad, with sweeping powers and far-reaching effects. Whether consciously or not, that has created an undesirable degree of division.

The Opposition do not think it wrong, in itself, for public bodies to take ethical investment and procurement decisions, given that there is a long history of councils, universities and others taking a stance in defence of freedom and human rights. After all, it is local ratepayers’ money, and it is reasonable for them to want a say in how to spend or invest it. Similarly, the money in a pension fund belongs not to the Secretary of State but to its members, so it is reasonable for members of funds, through their trustees, to wish to express their views on how the money is invested. We know that that is also the Government’s view, because they have carved out a wide range of exceptions in the schedule. It is clearly not in debate that there ought to be a degree of local say on such activity.

However, it is important to say, at the start of our line-by-line scrutiny, that there is a significant difference between legitimate criticism of a foreign state’s Government and what some have sought to do in recent years. There are those who have sought to target Israel alone, hold it to different standards than others and create hostility towards Jewish people in the UK. That is completely wrong, and we fully support efforts to tackle antisemitism in this country. However, this solution is not sufficient. In its unamended form, clause 1 will go far beyond what we are seeking to resolve and will create a series of problems along the way.

My amendment 3 seeks to clarify the ambiguous wording that a public body may not have regard to a “territorial consideration” when making procurement and investment decisions. As the then shadow Secretary of State—my hon. Friend the Member for Wigan (Lisa Nandy)—and I asked on Second Reading, is that supposed to mean that public bodies may refuse goods from a nation state such as China because of a general disregard for human rights, but may not refuse cotton goods from a territory such as Xinjiang state because of concerns about genocide of the Uyghur population? Or does it mean, as I suspect it may, that all actions of all foreign Governments are beyond the scope of local decision makers unless excepted in the schedule? Perhaps it is illustrative of where we are in the process of reviewing the Bill that that remains in doubt. We have seen doubt in the written evidence, and obviously doubt was felt at Second Reading, too. We need greater clarity in the Bill.

My amendment 3 is a probing amendment. I will not seek to divide the Committee on it, but I hope that it will provide an opportunity for the Minister to give clarity. I think we know that the Government mean that it is not territory-only boycotts that are out of scope, but rather that all boycott-type activity, where it disapproves of foreign conduct, is out of scope. I hope to hear that from the Minister.

I turn to the amendments tabled by the hon. Member for Airdrie and Shotts. My amendment 3 would have the same effect as her amendment 23 and is similar to amendment 22, so the same arguments stand.

I am interested to hear what the Minister has to say about amendment 31. It relates to the important debates we had in our evidence sessions about the reasonable observer test, which I struggled with a little. When I asked the witness panel about that, we heard slightly mixed evidence. I was willing to accept it as a term of art which would be well known to the courts and therefore not likely to provide another issue for litigation, but that point seems to be in doubt. I hope that the Minister can be clear about why this approach has been chosen.

I have no doubt that this legislation is heading straight for the courts. That was obvious from written and oral evidence and the Second Reading debate, and it will be obvious throughout our line-by-line discussions. Our debates in Committee will be germane to court proceedings as well, so it is important to have the greatest possible clarity in the Bill and in our discussions.

Finally, amendment 30 relates to a matter that I shall address in detail when we debate clause 4 stand part.

Conceptually, the Bill stands up and is easy enough to understand when we think about public bodies as entities in their own right. However, it swiftly starts to disintegrate when we consider that those entities are made up of a person or persons. I thought that there were some admirable logical gymnastics on that point from the Minister during our evidence sessions. She said that on one day a person might be a councillor, a trustee or a Mayor, and thus the decision maker, but that on another day, in another context, they might no longer be and would therefore not have their freedom of expression fettered. I am not sure that that is credible, but I suspect that the Minister will want to speak to that point, so I hope to hear some greater clarity on it.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

It is a pleasure to serve under your chairmanship, Sir George, with other hon. Members from all parties. The Bill is an important piece of legislation that has been brought to this place to fulfil a manifesto commitment to ensure that the UK speaks with one voice internationally, and to promote community cohesion within the United Kingdom. We have 17 clauses and one schedule to discuss in four sittings.

Amendments 22 and 23 would remove the references to “territorial consideration” from the Bill. I am not sure that this is what the hon. Member for Airdrie and Shotts intended, but the amendments would broaden the scope of the Bill. In its current form, the Bill will prohibit only territorial considerations

“that would cause a reasonable observer of the decision-making process to conclude that the decision was influenced by political or moral disapproval of foreign state conduct”,

but the amendments would mean that when a public authority is making a procurement or investment decision, all considerations influenced by political or moral disapproval of foreign state conduct would be captured, not just territorial considerations—unless, of course, they were also excluded in the schedule.

The condition of “territorial consideration” in the ban means that the Bill only bans certain boycotts or divestments that “specifically or mainly” have regard to a country or territory. It does not currently, for example, prohibit public authorities that have an environmental policy for their procurement or investment decisions that is universal rather than country-specific. The amendments would arguably prohibit such policies, which is not the intention of the Bill.

[Bob Blackman (Harrow East) (Con)]

Does my hon. Friend accept that if the amendments are agreed to—obviously colleagues have proposed them on a sensible basis to probe the intention of the Bill—one of the risks, given that there are all sorts of territorial claims all over the world, is that countries that are occupying territories might be brought into scope if this change is made? The reality is that it should be the foreign policy of the Government that determines whether such decisions are taken, not individual authorities.

[Felicity Buchan]

I completely agree that foreign policy should be determined by Government. I would like to point out the definition of a territorial consideration in clause 1(3):

“A ‘territorial consideration’ is a consideration that relates specifically or mainly to a particular foreign territory.”

Foreign territory is defined in clause 1(5) as

“a country or territory outside the United Kingdom.”

For the avoidance of any doubt, “territorial” does not apply simply to territories; it also applies to countries.

Amendment 3 would exclude “territory” from the Bill’s definition of a foreign territory. In his evidence to the Committee, Richard Hermer KC raised a concern about the term “territorial consideration”, and I understand that the hon. Member for Nottingham North has tabled the amendment to address that concern. I have already explained the importance and purpose of territorial consideration, so I will not repeat it. I understand that Mr Hermer’s concern is that the terminology indicates that the clause applies only where there is a territorial dispute, but that is not the case. As Jonathan Turner noted in evidence to the Committee, there is nothing in this wording that suggests that the clause will apply only where there is a territorial dispute. If that is the reasoning behind the amendment, it is unnecessary.

Unless I am mistaken in my understanding of the reason for the amendment, it seems to be intended to attempt to reduce the scope of “territorial considerations” in the ban. In other words, it appears to intend for public authorities to be permitted to have regard to considerations relating to a territory when making an investment or procurement decision, even if that decision is influenced by the moral or political disapproval of foreign state conduct.

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[Chris Stephens (Glasgow South West) (SNP)]

I am grateful to the Minister for giving way, but there are difficulties with the drafting of the clause, and one criticism is that it seeks to apply a subjective rather than an objective test. However, will she clarify the point made by the hon. Member for Nottingham North? The disapproval of foreign state conduct, which the Bill refers to, includes disapproval by individuals and by public organisations collectively, but it would also apply to individuals in such organisations. Will the Minister therefore outline the Government’s intent, because there is some confusion about the way the Bill is drafted?

[Felicity Buchan]

I will go on to address that, but to give the hon. Gentleman a simple answer now, if an individual is talking on behalf of a local authority, that is captured by the Bill. If a council leader makes a statement on behalf of the local authority, that is captured. If a councillor, or indeed a council leader, makes a statement but is not representing the local authority, that is not captured. The issue is whether it is “on behalf of”.

[Chris Stephens]

The Minister is being very generous in giving way. Let us be clear: a council leader or any councillor who is being interviewed by a journalist or on television would have to say, “This is my personal opinion. I am not speaking on behalf of the local authority,” and would have to hope that that was not edited out before the interview hit the newspapers or the television. There is a bit of difficulty around this issue. Given the Minister’s answer, I wonder whether the Government could go away and look at the clause, because I think they will find themselves in great difficulty on this issue.

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[Felicity Buchan]

I was going to explain that, but I will give the condensed version: we will put it into the explanatory notes. We will give further clarity in those notes.

Amendment 32 could cause confusion about whether the ban may or may not be breached as a result of the political and moral disapproval of individuals who make decisions on behalf of a public authority. The drafting of the Bill clarifies the position: where an individual makes a decision on behalf of a public authority, that will be seen as the public authority’s decision, so the public authority will be subject to enforcement action, not the individual.

The Bill needs to be clear that decisions that involve disapproval by individuals who make a decision on behalf of a public authority are in scope; otherwise, it would bring into doubt situations such as a council voting for a local authority to conduct a boycott or indeed any decision taken by a group that makes decisions for a public authority, such as a board or committee. The ban would be ineffective and easy to circumvent if such decisions were not covered.

It might also be helpful if I explain how the ban affects individuals. Anyone acting in an individual capacity is not caught by the ban in clause 4 on making a statement of intent to boycott or divest, unless the individual is making that statement on behalf of the public authority. I gave the example of the councillor. I know that that has been a point of confusion for members of the Committee so, as I said, I will clarify the point in the Bill’s explanatory notes.

In addition, when an individual or groups of individuals make a decision that is caught by clause 1, or a statement on behalf of a public authority caught by clause 4, the individuals are not personally liable: the public authority is. The public authority would be the subject of any enforcement or court action. In evidence to the Committee, Dr Alan Mendoza confirmed that that position is laid out clearly in the legislation and that the European Court of Human Rights would agree. The Government remain strongly committed to the UK’s long and proud tradition of free speech and to article 10 of the European convention on human rights.

I hope that that reassures the Committee, especially in the light of the additions to the Bill’s explanatory notes. The scope of the Bill is strictly limited to the actions of public authorities, and only affects individuals when they make statements or take action on behalf of public authorities. Therefore, for the reasons that I have set out, I respectfully request that the amendments be withdrawn.

[Ms Qaisar]

Amendments 22, 31, 23 and 32, tabled by my hon. Friend the Member for Glasgow South West and me, include probing elements, as well as changes to the legislation, because on the face of it the Bill simply does not make sense. As I said in my opening statement, that is not just my opinion, but the opinion of various different organisations in written and oral evidence. The Bill is so poorly drafted.

The Minister took a lot of time to talk about clause 4, but at this point I want to concentrate on clause 1; we will come to clause 4 later. The Bill will have an impact on the autonomy of local authorities. For years, indeed for decades, local authorities and local councillors at the very local level—I keep using “local”, because that is vital—have played a role in the protection and promotion of human rights. It is important for that to be protected.

The Bill, if passed, will have an impact not only on local authorities but on universities, which is vital because they play an essential role: they gather knowledge, free from interference, to educate people in skills and in thinking critically and independently. Some of my amendments to later provisions in the Bill come back to the importance of universities and how the Bill contradicts previous legislation introduced by the UK Government.

The Bill is, as I say, drafted poorly. I still do not understand the part of the Bill that talks about “a reasonable observer”. That is why we tabled the probing amendment 31. These are subjective, not objective tests. The Minister essentially needs to go back to the drawing board. The SNP is looking to divide the Committee on amendment 22.

Question put, That the amendment be made.

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[Wayne David (Caerphilly) (Lab)]

rose—

[Felicity Buchan]

I shall begin by addressing amendments 15 to 17—

[The Chair]

Order. I apologise, Mr David. You had not caught my eye, but you have now.

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[The Chair]

Before I call the Minister, it might be helpful to point out that if Members want to be called, they should bob. That way I will be able to work out the sequence of the debate.

[Felicity Buchan]

I shall begin by addressing amendments 15, 16 and 17. The amendments would remove references in clause 17 that extend the Bill to Scotland. The amendments also remove a reference to Scotland in clause 3. Scottish Ministers are currently named on the face of the Bill so that they can only be exempted from the ban via a change to primary legislation. The amendment would allow Scottish Ministers to be exempted from the ban via secondary legislation.

The Bill’s provisions apply to all areas of the UK. The provisions apply to all public authorities, as defined in section 6 of the Human Rights Act 1998, across England and Wales, Scotland and Northern Ireland. First, it is absolutely essential that the Bill extends to public authorities across the entirety of the UK. Foreign policy is a reserved matter. The Bill ensures that the UK speaks with one voice internationally. It will safeguard the integrity and singularity of the UK’s established foreign policy, which is set exclusively for the whole of the United Kingdom by the United Kingdom Government.

Secondly, as we heard extensively in the oral evidence sessions, boycott, divestment and sanctions policies are divisive and undermine community cohesion. We have seen examples of actual or attempted BDS activity in public authorities in England, Wales, Scotland and Northern Ireland. It is crucial therefore that the legislation applies across the UK to prevent such divisive behaviour in any of our communities.

[Ms Qaisar]

I thank the Minister for giving way; she is being very generous with her time. She has set out that UK foreign policy is a reserved competency. I am interested to seek clarity and understanding on that, as I cannot remember a time when the Scottish Government have taken a different stance to the UK Government on UK foreign policy. Is the Minister able to outline one of those stances?

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[Felicity Buchan]

The purpose of the Bill is to ensure that we do not have any public authorities, whether that is Scottish Government Ministers, Scottish local authorities or English local authorities, taking different foreign policy decisions.

[Chris Stephens]

rose—

[Felicity Buchan]

Let me continue, please. I will come on to address a few of the points in relation to procurement and divestment when it represents political and moral disapproval of a foreign state’s conduct. I want to reassure the hon. Member for Airdrie and Shotts on a few points. As for Glasgow City Council changing the name of a street, nothing in the Bill changes the council’s ability to do that.

[Chris Stephens]

Will the Minister give way on that point?

[Felicity Buchan]

No, I want to continue to make these points for the sake of clarity and address some of the issues.

Similarly, a Scottish Government Minister could say they oppose the Iraq war. The Bill applies when investment and procurement decisions are based on moral and political disapproval of a foreign state’s conduct.

[Chris Stephens]

I am grateful to the Minister for giving way. I know she is trying to clarify the situation, but I am afraid that those of us who are Glaswegian and proud of our Glaswegian roots are concerned that the Bill will prevent the actions that Glasgow took in the 1980s from happening again. The Conservative Government’s policy in the 1980s was against sanctions in South Africa, and Strathclyde Regional Council, City of Glasgow District Council and other Scottish local authorities decided to take investment and procurement decisions against the apartheid state of South Africa. City of Glasgow District Council was allowed to rename a street and give someone the freedom of the city, but would it have been able to take the decision to disinvest from apartheid South Africa had the Bill been in place in the 1980s?

[Felicity Buchan]

If Government sanctions exist, they continue to exist. The Bill is specifically to prohibit divestment and procurement decisions.

I want to address the point made by the hon. Member for Airdrie and Shotts in relation to Russia. I give her my assurance that we will look to introduce a statutory instrument to exempt Russia and Belarus from the provisions of the Bill.

Amendment 30 would remove the decisions of Scottish Ministers from the scope of the Bill, and a carve-out for the decisions of Scottish Ministers would be inserted into clause 2. It is not clear whether the hon. Member for Airdrie and Shotts intends for the amendment to be read alongside amendments 15 to 17. Clause 2 applies the ban in clause 1 only to public authorities, as defined in section 6 of the Human Rights Act 1998. The clause also carefully defines decisions in scope only as those related to a public authority’s investment and procurement functions, which is the point I keep coming back to. I would like to reiterate my response to amendments 15 to 17 by saying it is absolutely essential that the Bill extends to public authorities across the entirety of the UK. That will include Ministers, Departments and agencies in the devolved Administrations, who have also faced pressure to engage in BDS activity.

As I have said, foreign policy is reserved, so it does not trigger a legislative consent motion. However, as the ban applies to the Ministers of the devolved Administrations, this may alter their Executive competence. We have therefore formally engaged the legislative consent process, and I look forward to discussing the Bill further with my counterparts in the devolved Administrations. The Government are not seeking legislative consent for the rest of the Bill’s provisions, as the other provisions do not trigger the legislative consent process.

I was asked specifically about how the Bill affects Northern Ireland. Given the continued absence of the Northern Ireland Assembly and Executive, a legislative consent motion cannot be secured currently. It is important that the Bill applies in Northern Ireland to ensure that the people of Northern Ireland benefit from these important protections. UK Government officials will work with counterparts in Northern Ireland to discuss the Bill’s contents and provisions, along with the Bill’s devolution analysis. We are hopeful that when the Assembly is restored, it will be able to consider and support a legislative consent motion for the Bill.

[Wayne David]

Will the Minister give way?

[Felicity Buchan]

Let me continue.

The Government will continue to uphold the Sewel convention and make sure that the interests of the devolved Administrations, and of people in Scotland, Wales and Northern Ireland, are taken into account. I will address amendment 1 and see whether that answers the question raised by the hon. Member for Caerphilly. The amendment suggests an addition to clause 17 to make legislative consent a legal requirement. Scottish Ministers, Welsh Ministers and Northern Ireland Departments would be captured by the Bill only once that consent is granted by each of the devolved legislatures.

The hon. Member for Nottingham North suggests an amendment that would undermine the principle that the UK Parliament is sovereign. It is not appropriate to write such a political convention to seek consent into the legislation as a legal precondition for the Bill to apply to devolved Ministers. Furthermore, the codification of the Sewel principles, which are already written in statute, is unnecessary. The Lords Constitution Committee recently reported on the issue, stating:

“We do not believe it would be desirable to involve the courts in adjudicating…on the meaning and application of the convention, which are best resolved through political deliberation.”

For those reasons, I ask hon. Members to withdraw their amendments.

[Wayne David]

I thank the Minister for her response. First, as far as Northern Ireland is concerned, my understanding of what she has said is that the legislation will not be applicable in large part until the Northern Ireland Assembly is reconvened and has had an opportunity to discuss with central Government a legislative consent motion. That is my understanding of what she has said. Will she confirm that?

Secondly, on the Sewel convention, it is unfortunate that the Government are not prepared to accept the amendment, because it simply reiterates the reality and provides clarification. I accept that in the Government’s mind it could be a questioning of the sovereignty of Parliament, but I do not think an accurate reading of the amendment will in any way suggest that. It recognises that the legislative consent motion process is well established. The Sewel convention needs to be firmed up, and this is one step in ensuring that the partnership of nations in the United Kingdom is made firmer, not weaker.

[Felicity Buchan]

On the Sewel convention, as I have said, we do not think it is appropriate that that is put into legislation. We feel that that is a political deliberation, but, clearly, the Government are supportive of the Sewel convention. In light of our support of the Sewel convention, we will do everything to work with the devolved Administrations, as we always do in order to try to get an LCM.

On the specific point about Northern Ireland, I want to correct your interpretation of what I said—

[The Chair]

Order. It wasn’t my question.

[Felicity Buchan]

My apologies, Sir George; I meant that I wanted to correct the interpretation of the hon. Member for Caerphilly of what I said. The measure will extend and apply to Northern Ireland by virtue of the fact that this is a foreign policy and it is a reserved matter, but we want to work to get the legislative consent motion, which might take time in Northern Ireland because it will require the Assembly to be in place.

[Ms Qaisar]

We have all spoken about how foreign policy is reserved, but public procurement and the use of taxpayers’ money is a devolved competence. It is completely correct that Northern Ireland, Wales and Scotland attempt to use the leverage of public procurement to incentivise companies to behave sustainably with regard to human rights, labour rights and the environment. That is correct and right.

I am a little confused by the Minister’s contribution and would appreciate clarification. I made an intervention and she was very generous with her time. My question was whether she was able to explain a time when the Scottish Government had not been in line with the UK Government on foreign policy. As far as I am aware, the Scottish Government have always acted responsibly and in line with the UK’s international commitments. Why, therefore, have Scottish Ministers been included on the face of the Bill when the Minister is unable to explain that point?

I also seek clarification on the Minister’s response to my hon. Friend the Member for Glasgow South West. My hon. Friend raised the point—we have spoken quite a bit about Glasgow City Council today—that after renaming the street and inviting Nelson Mandela to come and speak, would they have been able to disinvest? As far as I understood her contribution, the Bill would have stopped disinvestment in South Africa. I would appreciate clarification from the Minister, if she can give it. I would like to divide the Committee on my amendment.

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[Steve McCabe]

No, I think I will wait. Thank you, Sir George.

[Felicity Buchan]

Amendment 4 would remove the power granted to the Secretary of State to amend the schedule so as to make exemptions to the ban for certain bodies and functions and certain types of considerations, and to amend or remove regulations made under those powers.

The power is necessary to ensure that the ban can evolve over time and operate as intended. The Bill rightly applies to the full range of public authorities. That is necessary to ensure that we have a consistent approach to foreign policy and to stop public authorities being distracted from their core duties by divisive debates and policies. In the event that the ban has unintended consequences for a public authority and impacts on its ability to deliver its core functions, however, this power will allow the Secretary of State to exempt the body, or a function of that body, from the ban via a statutory instrument. The exercise of the power will be subject to affirmative resolution by both Houses.

The power will also allow the Secretary of State to exempt certain types of considerations from the ban. That may be necessary if the Secretary of State needs to react quickly to international events. In the drafting of this legislation, my officials have been careful to ensure that the Bill applies only to appropriate bodies and types of considerations. However, the Government may also decide that a certain consideration should be made exempt from the ban so that the Bill can operate as intended. The Secretary of State requires the power so that he can respond effectively to potential unintended consequences that the Bill might have on a public authority without the need for primary legislation. If that had to be done through primary legislation, a public authority might have its ability to carry out public functions hindered for an extended period. I therefore ask the hon. Member for Nottingham North to withdraw his amendment.

[Alex Norris]

I am grateful for that answer, but I am afraid that the Minister has rather made the Opposition’s case for us. It is deeply concerning to hear that the purpose of the provision is about anxiety in Government concerning the possibility of a bundle of unintended consequences that could hinder a public body’s activities for a number of months, as has been said. That is the reality—we have said that from start to finish. This thing will set a fire. This thing will roll in ways that we cannot conceive of, because it is so broadly drawn and, in places, so erratically drawn. That is a reason for not proceeding with the Bill in this form, and for coming back together to produce—as we are all keen to—something that is less broad and wide-ranging, but delivering a solution to the problem that we are seeking to tackle.

The Minister’s argument is not for retaining subsection (2), but for revisiting the provisions. I therefore hope that, having said that, she will reflect on the fact that she discussed the great anxiety about the unintended consequences of the Bill. That is what we should be addressing, instead of just giving yet more powers to Secretaries of State to act as they wish. I will press the amendment to a Division.

Question put, That the amendment be made.

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[Kim Leadbeater]

I rise to speak briefly but strongly in favour of amendment 2. The UK should be a beacon for human rights, not just here at home but in our foreign policy and our relations with other states. That can be done only on the basis of a consistent application of the principles we seek to uphold. It is not hard to do that when human rights abuses are committed by countries we are in conflict with. However, we must be ready to apply the same standards to countries we regard as allies and friends. That is not always easy, but if we fail to do so, we open ourselves up to accusations of double standards and hypocrisy.

[Felicity Buchan]

Amendment 2 would exempt decisions from the ban that have been made in accordance with a statement of policy relating to human rights, produced by a public authority. The Secretary of State would be required to produce guidance on the content of any such statement, to which public authorities would be required to have regard.

Seventy-five years on from the signing of the universal declaration of human rights, the UK remains steadfastly committed to an open international order, a world where democracy and freedoms grow and where autocracy is challenged. We put open societies and the protection of human rights around the world at the heart of what we do. That includes our membership of the Human Rights Council, robust action to hold Russia to account over its actions in Ukraine and at home, calling out China in Xinjiang, leading the call for the special session on the human rights implications of the conflict in Sudan, and our global human rights sanctions regime.

We continue to work with our partners, civil society and human rights defenders to encourage all states to defend democracy and freedom and to hold those who violate human rights to account. Our annual human rights and democracy reports are an important part of that work. This Government, Foreign, Commonwealth and Development Office Ministers and officials continue to defend individual rights and freedoms, including through regularly raising concerns with other Governments. Our resolve to ensure that everyone can enjoy their rights is unwavering.

The international rules-based system is critical to protecting and realising the human rights and freedoms of people all over the world. We work through the multilateral system to encourage all states to uphold their international human rights obligations and to hold those who violate human rights to account. We are all in agreement that human rights abuses have no place in public supply chains.

I am concerned, however, that this amendment would give public authorities too much discretion to apply blanket boycotts. I also believe that the amendment is unnecessary because of the work that the Government are already doing in the Procurement Bill, which I will address in more detail.

The Procurement Bill already contains a robust regime for the exclusion of suppliers that are unfit to hold public contracts. That Bill sets out a wide range of exclusion grounds that target the most serious risks to public procurement, including modern slavery and human trafficking. The Cabinet Office has strengthened the way in which these terms are defined, so that suppliers may be excluded where there is sufficient evidence that they are responsible for abuses anywhere in the world, whether or not they have been convicted of an offence.

We have mirrored in this Bill the exclusion grounds in the Procurement Bill that pose the most significant risk to public procurement as exceptions to the ban, including for modern slavery and human trafficking. This means that public authorities will be allowed to make a territorial consideration that is influenced by moral or political disapproval of foreign state conduct in so far as it relates to one of the considerations listed in the schedule.

Moreover, there is guidance to help contracting authorities to address human rights risks, and there is well-established practice throughout the procurement process. That detailed and thorough guidance includes sections on managing risks from new procurements and assessing existing contracts, taking action when victims of modern slavery or human rights abuses are identified, and supply chain mapping, and it includes useful tools and training.

For the reasons that I have set out, this amendment is unnecessary, but I am also concerned that it would give authorities too broad a discretion to apply blanket boycotts. The amendment would allow authorities to exclude suppliers from entire nations without proper consideration of whether a supplier itself had had any involvement in the abuse. To exclude suppliers based solely on where they are located conflicts with the open principles of our procurement regime and would in some cases be contrary to the UK’s international obligations, such as non-discrimination requirements set out in the World Trade Organisation agreement on Government procurement.

As I have previously stated, foreign policy is a matter for the UK Government and not an issue for public bodies. It is not appropriate for public bodies to be producing their own policies on human rights in relation to other nations. This amendment would undermine the intentions of the Bill, leaving public authorities distracted by questions and debate about their human rights statements and the foreign policy that lies behind that. Many public authorities with no interest or expertise in such debates would come under pressure to produce statements or to explain why they did not have one. The discretion for public authorities, even acting within Government guidance, would mean a multitude and divergence of foreign policies across our public institutions and a confusing picture on the international stage of what the elected Government’s foreign policy was. My concern is that, were this amendment to be agreed to, every local authority and public body would feel the need to produce such a statement even though they felt that they had no expertise in human rights. I am concerned that it would increase the level of dissension and community friction rather than in any way lessening it.

I just want to clarify that nothing in this Bill affects private individuals and private companies and their ability, clearly, to boycott or divest.

[Chris Stephens]

That is the double standard in the Bill: private companies can do what they like, but public bodies cannot. If I understand the Minister’s line of argument, she is concerned that this amendment could be used or abused by local authorities, but proposed new subsection (4C) specifically gives the Government the power to stop any blanket boycott. That somewhat negates her arguments.

Lastly, does the Minister agree with the position of any local authority that wishes to disinvest from China and Xinjiang in particular because of its treatment of the Uyghur Muslims?

[Felicity Buchan]

The hon. Gentleman alludes to the difference between how we treat private and public bodies. There is a very good fundamental reason for that: we want there to be one UK foreign policy and we do not want other public bodies to be making up their own foreign policy or statements on such matters, whereas a private individual or private company is entitled to invest or divest as they see fit.

[Bob Blackman]

Our public bodies include people from countries all over the world, some of whom may have expertise relating to a particular country. Under this amendment, if they highlighted human rights abuses in a specific country it could result in their public authority introducing a policy that is totally different from that of all other public authorities. Does my hon. Friend agree that such a risk should not be put in the hands of local authorities?

[Felicity Buchan]

That is a very good point. This amendment carries the risk of allowing a multitude of different statements on human rights, without any consistency, resulting in the community friction that we all desperately seek to avoid. That is why we are looking to boycott the BDS movement.

[Alex Norris]

I am grateful for the Minister’s response. To address the point made by the hon. Member for Harrow East, the circumstance he outlined could happen now, of course. Part of the reason we are here and that legislation in this space is important is that it does not happen in that way, does it? As we heard in the evidence sessions, it almost exclusively tends to be targeted at Israel. I do not think there is any evidence to suggest that local expertise is causing a thousand flowers to bloom across public bodies. Actually, amendment 2 would protect against that because it would give local authorities tools to say, “Look, we can only do this if we can engage in it across the piece, and we don’t think that that is core business.”

The Minister has expressed her concerns about distractions for local authorities. I know from my time in a local authority, during which we pushed back against a boycott of Israel, that these things flair up over a short period, a lot of energy goes into them, and it would have been much better to have had a fixed point. The amendment reserves the right of the Secretary of State to set out the form, so there would be no wild variance across all public bodies. It would give them a fixed point to anchor to, which would take a lot of pressure off the leaders of public bodies.

I am grateful to the Minister for making those points, but the reality is that we are in slightly different positions. I still hold out the hope—and I will be actively working on this between now and the final stages of this Bill—that our positions will become closer. At this point, however, given that the gap has not closed during this debate, I will have to press my amendment to a Division. We want to send a clear message that there are other ways of achieving this very important purpose.

Economic Activity of Public Bodies (Overseas Matters) Bill (Fifth sitting)

Felicity Buchan Excerpts

Committee stage
Tuesday 12th September 2023 Public Bill Committees

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

Amendments 5 and 6 would remove from the Bill the references to Israel, the Occupied Palestinian Territories and the occupied Golan Heights. All Committee members can agree that BDS is a pernicious movement that does nothing to promote peace in the middle east and sows division and hatred in the UK.

Last week, we heard passionate testimonies from representatives of the Jewish community in the UK on the impact of anti-Israel boycotts and divestments on community cohesion and their links to antisemitism. The witnesses set out that the statistics clearly demonstrate the link between antisemitism here in the UK and the situation in Israel: the months with the highest levels of antisemitic incidents in the UK correspond to the months in which conflicts have happened in Israel and the Occupied Palestinian Territories. That is why most of us on the Committee agree that we need to legislate to ban public authorities from engaging in such BDS campaigns.

We have seen that BDS campaigns pursued by public authorities often target the settlements in the Occupied Palestinian Territories. For example, in 2014 Leicester City Council passed a motion that stated:

“Leicester City Council resolves, insofar as legal considerations allow, to boycott any produce originating from illegal Israeli settlements in the West Bank”.

In 2021, a UN special rapporteur wrote to all local government pensions scheme committee chairs urging them to divest from companies that conduct business in the Israeli settlements. I think we can all agree that we should send a clear message that such campaigns should not be allowed, and the Bill provides that clarity.

For those reasons, it is vital that should a future Government choose to allow public authorities to engage in boycotts or divestments against Israel, it is done through a change to primary legislation and is thus subject to full parliamentary scrutiny. That is the only reason that Israel, the Occupied Palestinian Territories and the Occupied Golan Heights are named on the face of the Bill. The addition to the Bill is simply about ensuring that we use the most appropriate parliamentary procedure for a decision that would have a harmful impact on community cohesion in the UK.

Several Members referred to UK Government foreign policy. I will make it absolutely clear that the Bill does not in any way legislate for the UK’s foreign policy with regard to Israel. The Bill will not prevent the UK from imposing sanctions or otherwise changing our foreign policy on any country in the future if it is deemed appropriate by the Foreign, Commonwealth and Development Office. The Bill does not change our policy on the middle east. Our position on the middle east peace process is and continues to be clear: we support a negotiated settlement leading to a safe and secure Israel, living alongside a viable and sovereign Palestinian state based on 1967 borders with agreed land swaps, Jerusalem as the shared capital of both states and a just, fair, agreed and realistic settlement for refugees.

I will also make it clear that the UK believes very strongly in the importance of complying with international obligations under the UN charter and in compliance with Security Council resolutions. As I stated on Second Reading, the view of the UK Government is that the Bill is compliant with international law and our obligations under UN Security Council resolution 2334. For those reasons, I respectfully ask hon. Members to withdraw the amendments.

[Wayne David (Caerphilly) (Lab)]

I thank the Minister for her statement. I accept what she says about the Government’s commitment to a two-state solution, and so on, but that does not take away from the fact that substantive elements of the Bill, at the very least, place a serious question mark over that commitment. That is objectively true.

As Opposition Members have made clear many times, we are opposed to the BDS movement and all that it stands for, but this is not about that. The question before us is: what is the best way to tackle that? We believe that the best way to do so is on a cross-party basis by getting people together and creating a political consensus that will hold firm and endure. That is where we stand, and that is the basis of our opposition to the Bill.

It is also extremely important that we reiterate our commitment to international law. Again, I hear what the Minister says, and I do not doubt her sincerity for one moment, but there is nevertheless an opinion among those in the legal community that this legislation substantially questions our commitment to international law, and we are extremely concerned about that.

It is important that we conduct this whole debate in a constructive and friendly way, as I believe we have done so far. It is very important that whatever the outcome of our final deliberations and whether or not the Bill becomes an Act, it is nevertheless extremely important that we collectively reaffirm our commitment to peace and stability between Israel and Palestine.

--- Later in debate ---

[Wayne David]

I am a normal person, not a lawyer, and I am open to suggestions about what would be a legally tight definition. The important thing is that if the amendment were passed, I am sufficiently confident that His Majesty’s Government would draw up the correct legal definitions to ensure that the political views the Committee had expressed were made real. I take the hon. Gentleman’s point, but there is room for co-operation and hopefully a conclusion on this issue.

[Felicity Buchan]

I will address amendment 18 first and then the others. Amendment 18 would allow public authorities to choose not to procure from or invest in a company if that would give financial, economic or other benefit to a party that has breached international law.

The UK believes strongly in complying with its obligations under international law. That is why the Bill contains an exception to the ban for considerations that a decision maker reasonably considers are relevant to whether the decision would place the United Kingdom in breach of its obligations under international law. Nothing in the Bill breaks international law, nor would it compel any public body to take a decision that would put the UK in breach of international law; but judgment on whether a body is guilty of a violation of international law is not a decision for public authorities. That should be determined by a competent court. I was slightly beaten to that point by my hon. Friend the Member for Harrow East. Where there has been a judgment that a party has breached international law, the Government will review their response accordingly. Again, it is not the place of public authorities to do so.

The Bill already contains an exception to the ban for considerations relating to labour market misconduct, including modern slavery and human trafficking. That means that public authorities will be able to continue having regard to territorial considerations that are relevant to a breach of international treaties banning forced labour. We recognise that modern slavery often occurs in the supply chains of countries that are not party to international treaties on forced labour and that are unlikely to prosecute the perpetrators. Therefore, the Procurement Bill makes explicit provision for a new exclusion ground that does not require a conviction to disregard bids from suppliers that are known to use forced labour or perpetuate modern slavery.

Amendments 14, 19, 20 and 21 would add an exemption to the application of clause 1 for considerations relating to genocide, ethnic cleansing and apartheid. Apartheid is considered a crime against humanity. Although ethnic cleansing is not recognised as an independent crime under international law, the practice of ethnic cleansing may constitute genocide, crimes against humanity or war crimes. If genocide or a crime against humanity were ruled to have occurred by a competent national or international court—that is the important point—after consideration of all the evidence available in the context of a credible judicial process, it would send a strong signal to the international community. The Government would take any such ruling very seriously and consider their response, which could include the potential use of sanctions.

It is the long-standing policy of successive British Governments that judgment as to whether genocide or a crime against humanity has occurred is for a competent national or international court. It is not for the UK Government, and it is certainly not for public authorities to decide. For those reasons, I ask hon. Members to withdraw their amendments.

--- Later in debate ---

[Chris Stephens]

I know you are a seasoned political veteran, Sir George—it is always clause 4 that causes a problem, isn’t it? It is always clause 4, and the problem with this clause 4 is that it is the thought police clause. The difference is—[Interruption.] I have been rehearsing that one. I made that wisecrack privately to Sir George the other day, so yes. But this is the thought police clause. The normal police come for someone if they commit an act that is criminal, but the thought police are different. They act if someone “intends” to act in a particular way. Under the Bill, the authorities do not need to demonstrate any proof of intent to publish a particular kind of statement. That is impossible to do in the normal world, so let us just rely on telepathy to find out someone’s intent.

It gets worse, and I thank the hon. Member for Harrow East for taking my intervention. In clause 4, entitled “Related prohibition on statements”, subsection (1)(b) proposes that even

“were it lawful to do so”,

any alleged intent to do so would be a criminal act. You need only consult George Orwell on this, Sir George—prove me wrong if you can—because he says, “Yes, this is the Thinkpol, whose job is to monitor the citizens of Oceania and arrest all those who have committed thoughtcrime in challenge to the status quo authority of the Party and the regime of Big Brother.” Fortunately, there is an escape clause for the Government in clause 4, which states:

“This section does not apply to a statement by a Minister of the Crown”.

Lucky them—but not anybody else.

The convention for the protection of human rights and fundamental freedoms, better known as the European convention on human rights, was opened for signature in Rome on 4 November 1950—only two years after George Orwell published his book “1984”. The world had just come through a period in which freedom of expression had been brutally suppressed. The ECHR, to which the UK is still a signatory, defines freedom of expression thus:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The purpose of the Bill is therefore to break an international convention and undermine a fundamental human right. Why would any Government do that? Is it because this is the red meat that the Tory party is throwing to people—a policy that actively restricts moral and political freedom of expression on human rights, environmental protections and workers’ rights? Are they playing to a narrow audience with dog-whistle policies? We can end this dystopian farce here and now.

Witness after witness, even the witnesses who support the Bill and support the Government’s position on the Bill, said—all of them—that they had difficulties with this clause and how it could possibly be enacted and enforced. We need to take account of that, and I ask the House to support the amendment tabled by my hon. Friend the Member for Airdrie and Shotts. If not, we certainly need to remove clause 4.

[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.

[Dr Luke Evans (Bosworth) (Con)]

As Members of Parliament, we are always having to declare our interests if we think there is going to be a conflict. I asked a question yesterday about veterans’ health. I am the honorary president of the Royal British Legion. When discussing such topics, particularly when in front of the media, we know exactly where there could be a conflict of interest and therefore make the determination that it should be declared. We should therefore allow the legislation to stay as it is, because the distinction is clear between speaking on behalf of a public body and speaking as an individual elected to represent a point of view.

[Felicity Buchan]

I agree. That is the distinction between representing a public body and speaking as an individual, even if someone is an elected councillor.

[Steve McCabe]

Will the Minister give way?

[Felicity Buchan]

I am going to go into the detail on some points, and then I will take questions.

This clause does not impact an individual’s freedom to express a view. It is clear that declarations of boycotts and divestments are divisive and undermine community cohesion. These types of policies have no place in public bodies. We have seen examples of public bodies making declarations to boycott and divest as far as the law allows. Recent cases of declarations of anti-Israel boycotts that are not intended to be implemented, such as in Leicester, Swansea and Gwynedd councils, have been strongly opposed by Jewish groups. Such declarations are harmful even where the law does not allow boycotts and divestments. Therefore, such declarations cannot be made under the clause.

We heard repeatedly in evidence that a declaration stating, “We would boycott were it legal to do so,” is enough to trigger community friction and antisemitism issues. For instance, in 2014, Leicester City Council passed a motion targeting the activity of the Israeli state with a boycott

“insofar as legal considerations allow”.

[Alex Norris]

I am grateful to the Minister for the case that she is making. We agree with everything she said about that hateful speech, but the problem is that she just said, a minute before, that so long as a person essentially walks out of the council building, or says, “I am talking in an individual capacity”, despite being the leader of the council, they can say all those things and there is no protection under the clause. What meaningful advantage does the clause actually provide?

[Felicity Buchan]

This very much has the advantage of preventing Leicester City Council from making such a declaration. So anyone representing the views of Leicester City Council and saying, “I am standing here giving the views of Leicester City Council” is not allowed to do that.

Let me move on to exact circumstances. Under the clause, individuals, including councillors, are not prevented from making statements of their personal opinions freely in their own capacity. Councillors are not a public authority and, therefore, they will not be prevented from expressing their support for or voting in favour of a BDS motion. For example, representations made by councillors during a debate that indicate that they would be in favour of their local authority engaging in boycotts or a divestment campaign will not be captured by the clause. It will apply only to statements made on behalf of a local authority. Therefore, if a local authority published the minutes of a debate or a meeting in which a councillor said that they would be in favour of their local authority engaging in such campaigns, this would not be captured.

As I have promised, I will make that distinction clear in the Bill’s explanatory notes. We want this to be very clear. There is a real concern that recent declarations of anti-Israel boycotts, even when they are not implemented in practice, have driven and contributed to rising antisemitism.

[Steve McCabe]

I want to return to the example that the Minister cited relating to a personal or public persona. She said that if Felicity Buchan said something in a personal capacity, that would be fine, but if she said it as a professor or representative of an organisation, that would not. If Felicity Buchan were an extremely well-known, recognisable public figure, which she may well be one day, is it considerable that her personal persona would be divisible from her public persona in any credible way that courts or the wider public would recognise?

[Felicity Buchan]

The Bill is not distinguishing between personas, individual or public. It is a sentiment that I am giving as an individual, as opposed to doing so as leader of my council or head of my university, representing my university. It is about the distinction between the individual and the public body.

I am coming to the end of my remarks. We will put that distinction into very clear guidance in the explanatory notes.

[Chris Stephens]

It is important that we get to the bottom of this. There is a real enforcement difficulty here. Some newspapers are not always friendly to my party, some are not friendly to the Labour party, and some, believe it or not, are not friendly to the Conservative party. A newspaper could come up with a scenario in which it was quoting someone directly and giving the impression that that was their view on behalf of a public body, without expressing that that person was speaking in a personal capacity. That is a real difficulty. Of course, the other difficulty is that the Felicity Buchan we are referring to is a Minister of the Crown, so anything that Felicity Buchan says is completely exempt under the clause.

[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.

--- Later in debate ---

[Alex Norris]

Clause 6 sets out the enforcement authorities for the Bill’s provisions. Subsection (2) sets out that the enforcement authority is the Secretary of State or the Treasury, unless otherwise stated. Subsection (4) states that for any decision or statement made by an English higher education provider, the enforcement authority will be the Office for Students. On the face of it, that seems a fairly benign set-up for enforcement, but it creates a distinction in how the Bill treats different public bodies, on which I would like to press the Minister.

On the one hand, the Bill is saying that enforcement against higher education providers will be given over to a third actor, the Office for Students. On the other hand, it is saying that local government will be policed by national Government instead. Amendment 8 tries to put those things on a more consistent footing and to say that there should be less variance in enforcement. The amendment puts forward the Office for Local Government as a more suitable authority for enforcement of the Bill’s provisions in relation to local government.

I hope that the Minister will cover this issue in her response, because I do not know why there is divergence. She can put me right if I am wrong, but I fear that this is a continuation of central Government’s heavy-handed manner with regard to local authorities. Part of the problem with our approach is that we get devolution when local leaders get the answer “right”, but not so much when central Government disagree with them. Adding clause 6 to the Bill unamended will continue the trend of the Government wishing to keep the reins on local government. Given that they have already chosen to use the Office for Students, surely aligning that with the Office for Local Government would make an awful lot more sense.

Amendment 9 is similar to my amendment 4 on Henry VIII powers. The Government are reserving the ability to change the enforcement authorities as they wish under subsection (6). Amendment 9 seeks to delete that provision and ensure that we can set out, through normal parliamentary processes, who will enforce the legislation. Local councils are not going to change that much, and public bodies generally are not going to change that much, but the Government need emergency powers to vary the enforcement agency. If the Government wish to do things a certain way, they should put that in the Bill, and if they wish to change it they should return to Parliament through primary processes.

[Felicity Buchan]

I urge the Committee to reject the amendments. Let me explain why.

Amendment 8 would establish the Office for Local Government as the enforcement authority in relation to a decision or statement made by local authorities, except where specified otherwise. We have carefully considered the most appropriate enforcement authorities across the sectors that are covered by the Bill; for example, the Pensions Regulator has an existing role in regulating the administration and governance of the local government pension scheme. Although we are expanding some powers, the enforcement authorities listed in the Bill already have an existing role in enforcement for those public authorities. That is not the case for the Office for Local Government, which the hon. Member for Nottingham North is proposing.

The Office for Local Government is not envisaged as an enforcement authority for anything. It is intended to provide data and analysis about the performance of local government and to support its improvement, but it is not envisaged to have a role in regulating local government’s activities. It would therefore not be appropriate for it to have an enforcement role against local authorities in this context. Furthermore, Oflog is an office of the Department for Levelling Up, Housing and Communities and, as such, does not have a statutory basis. The effect of amendment 8 would therefore be to keep responsibility with the Secretary of State.

Amendment 9 would remove the power given to the Secretary of State or the Minister for the Cabinet Office to change the enforcement authorities in relation to a decision or statement captured by the Bill. The Bill will provide a power for the Secretary of State and other enforcement authorities to issue compliance notices, and to investigate and fine public bodies, where there is a breach of the ban. Public bodies subject to the ban will also be susceptible to judicial review if they break this law.

We have carefully considered the most appropriate enforcement authorities across some of the sectors covered by the Bill, such as the Pensions Regulator. For higher education providers on the register of the Office for Students, the Office for Students should be the responsible enforcement authority. As the Bill is drafted, the Secretary of State or the Treasury should be the enforcement authority for all other public bodies subject to clauses 1 and 4. Ministers of the Crown are not subject to the additional enforcement regime but are subject to judicial review.

In time, the most appropriate regulators for each of the sectors covered by the Bill may change. The Bill provides the necessary flexibility, via the power given to the Secretary of State or the Minister for the Cabinet Office, to update the respective enforcement authorities if they change. For those reasons, I ask the hon. Member for Nottingham North to withdraw his amendments.

[Alex Norris]

I am grateful for the Minister’s reply. I do not intend to press either amendment to a Division, but I will make a couple of points in response.

The Minister mentions that Oflog may not sit elegantly with the Office for Students, because the Office for Students has an existing role doing this type of activity, whereas Oflog does not. However, Oflog was only established in June, so of course it does not have a similar record or similar experience, but that is a person-made thing that could be changed. The Minister also says that Oflog was not envisaged as an enforcement authority, but I cannot believe that the Office for Students was ever really envisaged to be an enforcement authority either.

Similarly, the default enforcement authority in the Bill is the Secretary of State. I do not think that many people go to the ballot box imagining the capacities of different Secretaries of State to kick doors in; I hope not, anyway, because they certainly would not cast a ballot for me. I am therefore not wholly convinced that that is a brilliant argument against the amendment.

I also cannot accept the final point that the most appropriate agency may change in time. If that were the case as a result of the disestablishment of the Office for Students, say, that would itself require primary legislation, and the enforcement agency would be changed routinely as part of that. I do not think that Ministers should have the ability to change enforcement agencies on a whim—because one agency does not give the answers they want, for example—but I think there is a real risk of that. However, I do not think that that is enough to divide the Committee at this point, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jacob Young.)

Economic Activity of Public Bodies (Overseas Matters) Bill (Sixth sitting)

Felicity Buchan Excerpts

Committee stage
Thursday 14th September 2023 Public Bill Committees

[Chris Stephens]

It is a pleasure to see you in the Chair, Dame Caroline.

In considering this clause, we will continue some of the debates we had on clause 4 on Tuesday. We have heard many similar views from a range of parties that the Bill is an unethical attempt to stifle freedom of expression and legitimate concerns of councils and other publicly funded bodies. They will face significant fines for being about to, or likely to, associate with international norms of behaviour. And who will be empowered to conduct investigations into those suspected breaches? Why, it will be UK Government Ministers themselves who are granted that authority! There go freedom of expression and the rule of law. I ask Members to support the SNP amendments.

[The Parliamentary Under-Secretary of State for Levelling Up, Housing and Communities (Felicity Buchan)]

Amendments 25 to 29 would remove enforcement authorities’ power to give information notices and compliance notices in anticipation of a contravention of the ban.

First and foremost, the powers given to enforcement authorities to be used before such a breach will prevent the sort of deeply divisive activity that we have heard about from representatives of the Board of Deputies of British Jews and the Jewish Leadership Council in oral evidence. It is obviously much better to prevent a breach of the ban in the first place than to wait for a divisive boycott or divestment policy to be put in place before taking action.

I reassure hon. Members that that does not mean that there will be active monitoring of public authorities. Potential breaches will be investigated as and when they are brought to the attention of enforcement authorities by third parties. When flagged to enforcement authorities, it is only where relevant to a potential breach of clause 1 or 4 that an information notice may be issued to require information from a relevant public body.

Finally, the enforcement regime does not provide unprecedented powers for enforcement authorities. It is based on existing regimes. The powers are based on those that the Office for Students already has for regulating universities, and the powers to enforce the ban for local government pension schemes are similar to those that the Pensions Regulator already has. I therefore ask that the amendments be withdrawn.

[Chris Stephens]

We wish to test the will of the Committee on the matter. I ask Members to support our amendments.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Norris (Nottingham North) (Lab/Co-op)]

I beg to move amendment 10, in clause 7, page 5, line 32, leave out subsection (8).

This amendment removes provisions stipulating that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

It is a pleasure to see you in the Chair, Dame Caroline.

Clause 7 sets out the significant powers to compel information that will be made available to the enforcement authorities detailed in clause 6. As we have heard, the enforcement authority will most often be the Secretary of State. The provisions in clause 7 provide enforcement authorities with the power to prepare and issue an information notice to request from a relevant public body information relating to a decision in respect of the Bill. The enforcement authority—usually the Secretary of State, as I say—can request any information likely to be useful for it to assess whether the provisions of the Bill have been contravened or are likely to be contravened.

Provision is also made in respect of clause 4, the gagging clause. Clause 7 means that the enforcement authority can request information if it is satisfied that a public body subject to the Bill is about to publish, may publish or has already published a statement prohibited by the Bill. The most egregious provision is subsection (8), which provides:

“A person providing information in compliance with an information notice does not breach—

(a) any obligation of confidence owed by the person in respect of the information, or

(b) any other restriction on the disclosure of information (however imposed).”

“However imposed” is a challenging phrase. It seems to grant the Secretary of State or other relevant bodies the power to issue notices that would not only require all information to be handed over, but override normally protected duties of confidentiality, safeguarding or legal privilege. That is very significant. We would argue that those powers of investigation go beyond the powers of the security services to compel information. There is no clarity or sense of what checks and balances there are. Even the security services, which do not have that degree of power, have oversight mechanisms such as the Intelligence and Security Committee of Parliament. Frankly, this seems to be a very strong power to reserve to the Security of State or, indeed, the Office for Students.

We have heard evidence from multiple witnesses who are concerned about these provisions. We did hear from others who are less concerned, but even if colleagues consider the case I have set out to be wrong or overstated, the ambiguity is obvious. At the very least, the Bill is not clear enough. It is important to say that the Government do not—if I have understood properly what the Minister told the Committee last week—want the provisions to supersede legal privilege. That is welcome, and I am keen to have similar commitments regarding safeguarding duties. If that is the case, amendment 10 promotes that.

I believe that the Government ought to accept our amendment, or at least propose an alternative in lieu. What is in the Bill seems overbearing; if not overbearing, it is definitely unclear. That, at least, must be resolved.

[Felicity Buchan]

Amendment 10 would remove clause 7(8), which stipulates that providing information in compliance with an information notice does not breach obligations of confidence or other restrictions on disclosure.

The intention behind clause 7 is to provide a power for enforcement authorities to issue information notices to require information from a relevant public body relating to a decision in respect of the Bill. As drafted, the clause sets out a necessary and proportionate power for enforcement authorities properly to investigate potential breaches of the ban.

I must be clear that the clause does not place an undue burden on public bodies in scope of the ban. Information may be requested only if the enforcement authority is satisfied that a person has made or will make a decision or statement in breach of the Bill and that the information is likely to be useful for the enforcement authority’s investigation. Subsection (8) provides standard wording in order to give assurance to the person complying with the information notice that they will not be breaching an obligation of confidence or any other restriction on disclosure. The Bill is by no means unique in including such drafting; the same caveat is provided for in the Agriculture Act 2020, the Building Safety Act 2022 and the Health and Care Act 2022, for example.

The hon. Member for Nottingham North has said that he is concerned that the subsection would override the privilege between lawyer and client. I can reassure him that it does not. Legal professional privilege is a fundamental common-law right, including for those public bodies captured by the Bill, and specific words would not be needed to override it. The information power therefore does not extend to legally privileged material; I can confirm that I will clarify that point explicitly in the Bill’s explanatory notes. I would also add that Richard Hermer KC has subsequently clarified, in written evidence to the Committee on this point, his view that it is likely that a court would not deem legal professional privilege to be overridden by the clause.

Subsection (8) does not provide a right to extract the information, nor does it give a power to the Government; it simply provides the person who is disclosing information necessary to investigate a potential breach with protection against a claim for breach of confidence or any other restriction. I therefore ask the hon. Member to withdraw his amendment.

[Kim Leadbeater (Batley and Spen) (Lab)]

It is really important that legislation passed by the House be clear and unambiguous. As we have heard repeatedly in this Committee from a wide variety of sources, including witnesses who gave oral evidence and those who submitted written evidence, the Bill fails that test.

This subsection is another example of that. The open-ended reference to

“any other restriction on the disclosure of information”

makes no distinction, for example, between somebody expressing a view in a private and in a professional capacity. That cannot be right. Subsection (8) should be deleted.

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[Ms Anum Qaisar (Airdrie and Shotts) (SNP)]

I beg to move amendment 33, in clause 7, page 5, line 39, leave out from “legislation” to end of line 41.

This amendment is to probe the way the legislation appears to “qualify” the data protection legislation.

It is a pleasure to serve under your chairmanship, Dame Caroline.

Like previous clauses that we have discussed, clause 7 is poorly drafted. It hands enforcement authorities powers that risk infringing on civil liberties such as the right to a private life. The clause allows an enforcement authority to compel a person suspected of contravening a ban to provide information, including personal information about people involved with a decision. It is clear that the intention is to prevent a public body from contravening clause 4, the so-called gagging clause. However, the broadness of the clause risks casting too wide a net and infringing on personal data. My amendment 33 seeks clarity from the Government as to how the clause will interact with existing data protection legislation.

Data law exists to protect people’s privacy and data, but the Bill is confusingly drafted. In its current form, the clause could be interpreted as implying that existing data protection legislation is to be read in line with the Bill, rather than the other way around. That obviously raises issues about an individual’s right to data privacy. The circularity of the drafting could potentially mean information disclosure obligations superseding data protection legislation. As has been raised numerous times under other clauses, the drafting clearly suggests that little thought has gone into the powers granted to enforcement authorities. It is unclear whether any assessment has taken place of the legal necessity of the powers or of whether they are proportionate under the General Data Protection Regulation and the Data Protection Act 2018.

The drafting of clause 7(8) is particularly concerning. It provides that disclosure of information under the provisions will not breach

“any obligation of confidence owed by the person in respect of the information, or…any other restriction on the disclosure of information (however imposed).”

That is such a broad definition that it potentially includes everything from contractual restrictions and court orders to legal professional privilege and even statutory restrictions on information disclosures.

Many people have raised these concerns, as we know from our evidence sessions last week and from written submissions. I am sure that granting such expansive powers was not the Government’s intention in drafting the clause. I hope that the Minister will provide an explanation of why they have drafted the legislation so confusingly in respect of data protection and why they are granting such expansive powers to enforcement authorities.

The clause has the potential to allow a severe intrusion on an individual’s right to privacy under article 8 of the European convention on human rights, which provides the right to a private life. The grounds on which information can be requested are very wide: someone would need merely to be suspected of being in the process of potentially making a prohibited decision or statement to be required to hand over information. That is compounded by the requirement to provide any information that is

“likely to be useful to the enforcement authority”.

It would be beneficial if the Government explained what kind of information could be requested through an information notice.

Amendment 33 is a probing amendment, so I will not push it to a vote, but I hope that the Government will provide further detail on what evidence individuals will have to provide when issued with an information notice, as well as looking again at the broad powers granted under the clause.

[Felicity Buchan]

Amendment 33 would remove the part of clause 7 that refers to compliance with data protection legislation, specifically the requirement that the provisions of the clause should be taken into account when determining whether the provision of information would contravene data protection legislation. Importantly, an information notice does not require the provision of information if this would be in contravention of the data protection legislation.

The clause provides a lawful basis for sharing information. This is a standard drafting mechanism that respects the principles of data protection; it does not alter the principles of data protection. As I have already set out, the Bill is by no means unique in including this drafting, which features in various pieces of existing legislation, such as the Building Safety Act 2022 and the Agriculture Act 2020. For those reasons, I ask the hon. Member for Airdrie and Shotts to withdraw the amendment.

[Ms Qaisar]

I thank the Minister for her response, but I do not think it goes far enough in addressing the concerns that I and other Members have raised. I heard what she said, and I understand from her previous contributions that some additions will be made to the explanatory notes. I am slightly concerned that, when they made concessions on clause 7 and others, the Government said that there will simply be additions to the explanatory notes, rather than anything on the face of the Bill. I hope the Minister will go back and seriously consider how to tighten up the language in the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.

Clause 9

Monetary penalties: power

Question proposed, That the clause stand part of the Bill.

[Alex Norris]

I rise to speak to amendments 11 to 13, which relate to clauses 9 and 10. Clause 10(1) states that:

“The Secretary of State must, by regulations, prescribe a maximum penalty for the purposes of section 9”.

Clause 9 states that an enforcement authority may impose a monetary penalty on someone if they do not comply with the provisions of the Bill. Similarly, clause 10(2) states that:

“The Secretary of State may, by regulations, make provision about matters to which the enforcement authority must, or must not, have regard in exercising its powers under section 9”,

which refers to the power to impose monetary penalties.

The regulations set by the Secretary of State will be highly consequential, because they will show how the sharper elements of the Bill, which we have already discussed, will interact with the rights and freedoms of individuals. They will outline the monetary penalty, but also what the enforcement authority—most often, the Secretary of State—will weigh in making a decision. As drafted the Bill does not specify when the Secretary of State must make these regulations and when they will take effect. That leaves a degree of ambiguity, and a gap where people will be waiting to see when the provisions start to bite.

The Minister previously talked about measures being necessary and proportionate. It is necessary to have an enforcement regime, and proportionate for the shoe to drop at some point; otherwise there is no point in having the legislation. Also, having made a significant number of points around Henry VIII provisions, and, at length, been quite displeased by some of them, even someone with my hard heart would say that it is proportionate for those to be set by regulations, because they will change over time.

The quid pro quo for that is what I have set out in amendments 11, 12 and 13, which remove some of the ambiguity and has the Government say when they intend to set the regulations. These probing amendments—I will not press them to a Division—set out what ought to happen within 60 days of Royal Assent, which would give a degree of clarity for those who are getting their decisions in order and understanding when the provisions are likely to fall. I think that is proportionate. If 60 days is too short or long a period, I hope the Minister will say when the Government intend to do this. I suspect they want to get on with it, but people ought to have that clarity.

[Felicity Buchan]

Amendment 11 would require the Secretary of State, via regulations, to set a maximum fine that can be imposed on public authorities in breach of the ban within 60 days of the Bill being passed. The suggestion by the hon. Member for Nottingham North to set a deadline of 60 days for the Secretary of State, while well intentioned, is inappropriate.

It is crucial that the threshold for fines is carefully decided in consultation with enforcement authorities, including the Office for Students and The Pensions Regulator. Since that will also be done by the affirmative procedure, the measure will need to go through both Houses. It will need to go through the Joint Committee on Statutory Instruments, the Secondary Legislation Scrutiny Committee in the House of Lords, and it would need to be debated in both Houses. Clearly, it is a piece of legislation that the Government want to be implemented, so I give the Committee my word that we will do this as expeditiously as possible. It is wrong, however, to commit to 60 days.

The same arguments apply to amendments 12 and 13. We agree that expediency in setting out details of the enforcement regime is important, but we need to take into account proper consultation with the regulators and enforcement authorities, as well as due scrutiny in both Houses. For that reason, I ask the hon. Member for Nottingham North to withdraw the amendments—I know that he said they were probing amendments.

[Alex Norris]

I am grateful for that answer from the Minister. I am happy to withdraw the amendment on that basis. The point about consultation is important, so I hope that is a full consultation, both with potential enforcement authorities and those who speak for those that are going to fall under the provisions, such as the Local Government Association.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12

Application of prohibitions

Question proposed, That the clause stand part of the Bill.

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[Chris Stephens]

I beg to move, That the clause be read a Second time.

One definition of a human being is that they learn from their mistakes. To do so, they must review their actions against a set of criteria, often through an impact assessment, so as to identify any error, misjudgment or unintended consequence that they may have created. That sometimes leads to a revision or reversal of prior actions. I am sure that we all agree with that statement, given that we are all human beings, are we not? The principle applies to presumptions as well as actions. I am sure the Government hope this legislation will impact only on the countries and territories explicitly named in the Bill, but that may be presumptuous. New clause 1 provides a list of countries whose behaviour might change as a consequence of the Bill being enacted. It might change them for the better, but we ought to be aware that some will see it as a green light to expand their breaches of human rights, confident in the knowledge that the UK has turned a blind eye to their behaviour, all in the interest of expanding trade. We believe that the impact assessment and the timescales proposed are realistic and essential to the reputation of the UK. I ask the Committee to send a clear message to those countries by supporting the new clause.

[Felicity Buchan]

I urge hon. Members to reject the new clause. It would give the Secretary of State or Minister for the Cabinet Office a new duty to conduct an assessment, six months after passage of the Act, of its impact on the UK’s trade and diplomatic relations with the countries identified by the Foreign, Commonwealth and Development Office as human rights priority countries.

The UK Government’s trade positions and diplomatic efforts will not be affected by the Bill. Its intent is to ensure that the UK speaks with one voice internationally; it is not to hamper diplomatic relations by publishing arbitrary impact assessments for the countries listed in the new clause. The Bill makes clear where the power to conduct foreign policy is, and allows other public bodies to focus on their core duties. It does not change any aspect of the UK’s foreign policy.

That is not to say that the Government will not carry out impact assessments on international matters when needed. Indeed, we are already committed to producing independently scrutinised impact assessments, such as those for new free trade agreements. Moreover, as with any Act that the House passes, once the Bill is an Act it can be subjected to post-legislative scrutiny by a parliamentary Select Committee to assess how it has worked in practice since coming into force. The additional impact assessment proposed by the hon. Member for Glasgow South West is unnecessary. For those reasons, I ask him to withdraw the new clause.

[Chris Stephens]

I have listened carefully to the Minister. If I understood her correctly, she said that the Bill does not change Foreign Office policy. Many Opposition Members believe that some provisions in the Bill actually do change Foreign Office policy, and we explored that in an earlier exchange. Many of us believe that we are using a domestic Bill to change Foreign Office policy, and if we are doing that, I insist that the Committee divide on the new clause.

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Question proposed, That the Chair do report the Bill to the House.

[Felicity Buchan]

May I take this opportunity to thank the entire Committee? We have worked effectively and expeditiously. I also thank the two Chairs and the Clerks.

[Alex Norris]

Similarly, I want to put on record our thanks to you, Dame Caroline, and Sir George, to the top-class Clerks for all their help, to the civil servants for their work and to my colleagues. I draw special attention to my hon. Friend the Member for Wigan (Lisa Nandy), who was shadow Secretary of State on Second Reading, for her efforts and support while we have been getting our work together, and to the Minister for her collegiate work, both inside and outside this room. I also thank her colleagues.

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[Lia Nici]

May I clarify for the record that, as a general rule, Members of Parliament do not make contact with people who are not their own constituents? I will not ask my hard-pressed team in the constituency to respond to people who are not constituents. That is parliamentary protocol. No constituents have got in touch with me about this matter, and I will not be requesting that my team respond to non-constituents, because we need to work with people who really need our help.

[Felicity Buchan]

I echo the comments of my hon. Friend the Member for Great Grimsby. It may be useful if I spend one minute explaining how the witness list comes about. Each party suggests witnesses, and then a Programming Sub-Committee agrees the list of witnesses. I just wanted to clarify that point.

Question put and agreed to.

Bill accordingly to be reported, without amendment.