Economic Activity of Public Bodies (Overseas Matters) Bill

Joanna Cherry Excerpts

2nd reading
Monday 3rd July 2023 Commons Chamber

[Michael Gove]

My right hon. Friend is absolutely right. I shall go on to say more about the nature of the BDS campaign because we are not talking in the abstract; we are talking in concrete terms about a campaign that exists, and has been in operation now for nearly 20 years, based on a premise that seeks to delegitimise the state of Israel. The campaign also leads directly, as I shall point out, to antisemitic incidents and a loss of community cohesion.

[Joanna Cherry (Edinburgh South West) (SNP)]

I just remind the Secretary of State that the Bill goes way beyond the activities of the state of Israel and will apply potentially to other areas of foreign policy, too. Has he considered whether the interaction of clause 1(7) and clause 4 will disproportionately interfere with the freedom of expression, and of conscience and belief, of individuals who are making, or have a stake in, the procurement and investment decisions of public bodies? My view and that of many other lawyers who have looked at the Bill is that it will. Why has he not produced a human rights memorandum analysing the extent to which the Bill interferes with rights under article 10 and article 9, on freedom of belief, of the European convention on human rights, and article 19 of the international covenant on civil and political rights? Will he do so?

[Michael Gove]

Absolutely. Nothing in the Bill conflicts with any aspect of the ECHR, not least article 10.

[Michael Gove]

My right hon. Friend raises an important question because the Opposition have tabled a reasoned amendment. I believe they have done so in good faith. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) pointed out, some lawyers take a different view from the Government. One of those lawyers was commissioned by the Labour party to produce a legal opinion, but the gentleman concerned, a distinguished KC, has a record in this area—a record of political commitments that everyone can see clearly predispose him towards a political and particular view on this question.

[Joanna Cherry]

On that point—

[Michael Gove]

No. I am merely pointing out what is in the public domain. Let us turn to the nature of the BDS campaign.

--- Later in debate ---

[Michael Gove]

No, I absolutely do not. The Bill enhances the UK Government’s ability to protect human rights across the globe. On the point that the hon. Gentleman makes about legal challenge, it is the case that organisations such as the Palestine Solidarity Campaign and others have challenged the Government in this area in the past. They may do so again, but I am confident that the Bill is legally watertight. On the point—

[Joanna Cherry]

Will the Secretary of State give way?

[Michael Gove]

No, I am answering the hon. Gentleman’s question first.

On the point about the legal advice from Mr Hermer KC, as I have said, we believe that that legal advice is flawed and it comes from someone who has a clear political record of partiality on this question.

--- Later in debate ---

[Lisa Nandy]

This is a debate that needs far less heat and far more light, because we are talking about real people—about communities in the UK who are among the most marginalised and discriminated against in our country. I thank the Secretary of State for acknowledging in his opening remarks that Labour Front Benchers are acting in good faith in the approach we have taken, but I would echo a note of caution: we should not in any sense suggest that Members, of all parties in this House, who have expressed profound reservations about the Bill in front of us can be deemed to be antisemitic. They are not. They are participating in democracy and giving voice to real concerns. They are doing what we were sent to this House to do: scrutinise legislation and ensure that it has the intended impact. I encourage Members to continue to do so, because a Bill that is designed to promote and protect community cohesion can proceed only with the broadest possible consent.

[Joanna Cherry]

I thank the hon. Lady for what she has just said, because I also found the Secretary of State’s suggestion that those of us who oppose the Bill are condoning antisemitism, or are in fact antisemitic, to be disgraceful. Has she, like me, seen a public letter to the Secretary of State from a number of British-based Jewish academic experts in the fields of Jewish studies, the study of antisemitism and Israel studies, including my dear friend Professor Francesca Klug OBE, visiting professor of human rights at the London School of Economics? They have expressed the view that this legislation is damaging and wrong-headed and should be withdrawn. Will the hon. Lady confirm that that is a letter from leading British Jewish academics?

[Lisa Nandy]

I am grateful to the hon. and learned Lady for raising those concerns. We are keen that all the voices in this debate ought to be heard; I have heard different views from across the Jewish community, but I have to say to her that the overwhelming view I have heard is that there is a desperate need to tackle this very real problem. The strength of feeling in the Jewish community that we must legislate to tackle this problem is overwhelming. I do not want for one moment to deny that that is what I have heard in my frequent conversations with the Jewish community, but as I will outline, there are serious problems with the Bill that need to be addressed.

--- Later in debate ---

[Alicia Kearns]

Inherently, the hon. Lady makes a valid point, although it is potentially a different discussion. There is a fundamental question around whether we should be boycotting or bringing in goods. As the House knows, I have been vocal in ensuring that goods coming from genocide are not imported from across China. We must have a standard response across all countries.

To sum up, my concern is that legislation by the Department for Levelling Up, Housing and Communities must not depart from our foreign policy, let alone undermine it or leave us ostracised internationally. My second concern is the legislative implications from the exceptionalism proposed in the Bill. Since my election, the Government have been at great pains to make the point to me that all legislation should be agnostic. I must admit that I railed against that when first elected, and the House may have seen me table amendments with the words “China” and “Xinjiang” on repeat—ad nauseam, some might say. However, the Government are correct, and I have come to appreciate and recognise that position.

To demonstrate that point, let me draw on the Procurement Bill, which this Bill interacts with on exceptions, pension schemes and the UK security services. All the amendments that I tabled to the Procurement Bill—I am grateful to the Government for having accepted them—were country-agnostic, because the Government made the point that that is how we legislate, except for such things as trade Bills. We should be agnostic in all we do, but worse than being non-agnostic, the Bill gives exceptional impunity to Israel. We should not give that to any country, and I would be standing here making the same request were any country named.

To act in this way now sends a clear message to all Members of Parliament: “From now on, it is game on. If you want to put China, Xinjiang or any other country into primary legislation, crack on.” The Chief Whip will not be able to tell Members they cannot do it anymore, and Government Ministers will not be able to argue against it any more, because we have done it and broken that practice in this Bill. The Government will regret making this precedent. The reality is that we can achieve the same outcome without putting geographic references into primary legislation.

On the implications for freedom of speech—I thank my right hon. Friend the Member for North West Hampshire (Kit Malthouse) for having made me aware of how acute these are—the Bill has unjustifiable clauses. Clause 4(1) states that if a local council leader, university vice-chancellor or even the chief executive of a private company delivering public services speaks in a way that contravenes clause 1, they have broken the law. To make the implications clear, the Bill states that just someone expressing in print that they would like, as an elected official, to boycott products from Xinjiang, China or any illegal settlement but cannot, because the law does not allow them to do so, constitutes an offence punishable by an as yet unlimited fine from the Secretary of State. That is completely inappropriate.

[Joanna Cherry]

The hon. Lady is making a wonderful speech and I agree with everything she has said. On that last point, does she agree that the Bill is likely to disproportionately interfere with freedom of expression and the conscience of individuals, in such a way that does not sit with our obligations under articles 9 and 10 of the ECHR?

[Alicia Kearns]

I entirely agree with the hon. and learned Lady, because this legislation does breach article 10 rights to freedom of speech, as it fails to distinguish between a person and an authority, so individuals risk being liable. If the legislation made clear that it is about public authorities, we would not have those concerns, but the lack of that clarity makes individuals liable to being fined, and therefore it breaches article 10 of the ECHR. Given that the Government have just rightly passed the Higher Education (Freedom of Speech) Act 2023, which I fundamentally and entirely support, to now stop elected individuals from expressing moral disapproval or even to consider or vocalise ethical investment decisions is wrong.

My final concern is the legality of what we are being asked to support. I question whether this Bill will be legally sound once tested, and I have every reason to think it will not be, because it has previously failed in the High Court. When the measure fails again in the High Court, we will then see a judgment on the UK’s treatment of the Occupied Palestinian Territories, which I fear I would not be proud to stand behind. Similar legislation has failed, and legal concerns rest around, for example, the terms “political or moral disapproval”, which are not defined in the Bill and breach our commitment to making human rights fundamental in our decision making. Our obligations under the UN guiding principles on business and human rights essentially mean that this legislation would see the private sector having greater adherence to our human rights than the public sector. I encourage the Secretary of State to consider potential conflict between the UK Government and the UN stating that settlements are illegal while then penalising local councils in the UK for taking ethical procurement decisions to address that illegality.

There is significant unhappiness among colleagues in the House and in our party. To enable my right hon. Friend the Secretary of State to still deliver on our manifesto commitment, I urge him to please remove clause 3(7), which is unnecessary to delivering on our commitment. We can still do this, with just a small compromise from those on the Front Bench. The Government can still introduce Israel’s exception through secondary legislation, which would mean that we would treat Israel as equal to every other state. It would prevent us from breaching our UN Security Council resolutions and from being dragged through the courts. It would maintain our country-agnostic legislative approach, and it would prevent us from undermining our standing internationally.

While we are on the subject, I have never felt that we are so close to conflict, particularly following this morning’s news. There is the chance that we might be seeing a third intifada and the Gaza crisis of 2023, and we need to demonstrate meaningful resolve from King Charles Street in ending the conflict and de-escalating. I therefore urge the Prime Minister to appoint a middle east peace envoy, because we do not have any envoy for the middle east, let alone one focused exclusively on the middle east peace process. We should be worried, because what happens in Palestine and Israel impacts around the world. I stress that this low-commitment ask would allow us to live up to our responsibilities and demonstrate meaningful resolve. With that, I join with other respected friends of Israel in urging the Government to think again.