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

Kim Leadbeater Excerpts

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[Chris Stephens]

Thank you.

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

Q Clause 4 prevents public bodies, and anybody representing them, from saying that they would support a boycott if it was legal to do so. Do you agree that, on the face of it, that feels like a limit on freedom of speech? Is it compatible with free speech for it to be legal to say that you are against something—in this case, any kind of boycott—but illegal to say that you are in favour of it?

Dr Mendoza: I would go back to the question that Dr Harris posed. It is really a question of vires; it is about what a public body collectively should or should not be doing. A public body should not be making decisions in contrast to UK foreign policy on something like a boycott, basically. Individual members—individual fellows or whatever it might be—have every ability and right, still, to say what they like on the subject, but they cannot speak on behalf of their institution or their authority to do that. However, when it comes to opposing a boycott, there are rights and abilities there. That is something that public bodies are not allowed to do, so that would be in keeping with that.

I think there is a clear distinction between the two things. One is something that the body is not competent, or does not have the jurisdiction, to legally carry out; on that basis, what is the purpose of speaking on it? The other—opposing a boycott—is something it can do, because that is the norm and the effective position, in law, for that authority. I therefore see no problem, or indeed contradiction between the two things.

Dr Harris: Again, as I have said, it certainly conflicts with the spirit of free speech, and I suspect also with the law regarding freedom of expression. As I said, the European Court of Human Rights, at least in one case—that of Baldassi in France, which I hope the GLD will have taken on board—certainly does say that a boycott is a protected act of protest. The very interesting thing about that case is that the court said that justification for the restriction of political speech is key; there needs to be a tight justification for it. That is entirely in keeping with the common law in this country, and the political philosophy of this country, that political speech, especially, must merit the utmost protection in law.

I think that there is a point on which the Government are on safer ground. Let us say that they want to avoid the embarrassment of legal challenge—they might reasonably wish to, and I am sure that they do. I would certainly say that the community cohesion point is a stronger justification, and the European court makes that distinction very clearly too. As I have said, BDS, especially in the light of recent events, clearly goes to community cohesion, but it is entirely foreseeable that there may be future foreign policy controversies where that is not an issue and the Bill will still apply to them. That raises the question of proportionality: because it will cover even cases where community cohesion is not in play, is there overreach?

Let me quickly say on vires, because I think it is quite important, that it is entirely right for the law and Parliament to say to subordinate bodies, “This is the extent of your power; you serve the public interest in this way, to this extent, and you use your resources for this purpose.” I think it is entirely right for Parliament to say, as it already does, “If you’re a local government authority, foreign policy isn’t really what you should be spending your money on.” I think it is right to say that to other bodies. However, I think it is extremely provocative for Parliament to say that to universities. This Government and Parliament have done excellent work protecting academic freedom, but there is a second limb to academic freedom, which is the autonomy of academic institutions, and I think it is extremely questionable to challenge that.

[Kim Leadbeater]

Q Can I follow up on the point about community cohesion? Do you think that the Bill will have a positive or negative impact on community cohesion?

Dr Harris: It is a good question. I am not entirely sure. It is obvious that in some areas, where perhaps there is a certain degree of activism in the local authority, it could lead to some members of the community—I mean Jewish members of the community specifically—feeling like there is less pressure, and feeling less victimised and targeted. But as I say, there is going to be a significant number of cases where this justification will not apply because there is not an issue of community cohesion. Take the Ethiopian and Eritrean war: how likely is that to raise questions in this country of community cohesion?

--- Later in debate ---

[Dr Evans]

I have no further questions.

[Kim Leadbeater]

Q Almost reluctantly, I return to clause 4. I have been thinking about the practical repercussions of the Bill, and I have to say that my feeling this afternoon is that this is going to be pretty messy. If we are asking elected officials in council chambers up and down the country to say, “Now I am speaking in a personal capacity, and now I am speaking in my capacity as an elected official,” it feels like that would be very messy. Surely, as advocates of freedom of speech—as a number of members of the panel have said—that can only have a worrying effect in shutting down debate and discussion. That can only have an undemocratic outcome.

Professor Tettenborn: That is a very interesting point, if I may say so. There might be a simple way around it: we could have an extra subsection in clause 4 that said, “Nothing in this Act affects the right of any member of a public authority to speak in a private capacity.” Just saying it out loud provides a safe harbour; it means that people do not have to go to a lawyer to look up a law, or at least they do not have to go to so many lawyers. I think that might be helpful.

Professor Tomkins: I share everybody’s concern that we must take freedom of speech very seriously—I think that that is a very important set of concerns to raise—but there are two things to say.

First, what Professor Tettenborn has just described is already the state of the law. The way in which we approach rights under the Human Rights Act is that rights are stated generally, and any exceptions to those rights must be narrowly tailored and stated specifically. If there is doubt or ambiguity, it falls on the side of the right, not on the side of the exception. That is already, in broad terms, the legal position through the United Kingdom—as it should be, in my view. Adding extra words to clause 4 to deliver that effect will not have any effect, because it is already the legal position.

I remind the Committee that clause 4 is very narrow in scope: all it says is that somebody who is subject to section 1 may not say that they would have made a procurement decision or an investment decision different from the procurement decision or investment decision that they have made, by force of this legislation. It seems to me that all the members of this panel are of the view that that is perfectly compatible with article 10 of the ECHR, for all the reasons that we have rehearsed; and if it is compatible with article 10 of the ECHR, it is also compatible, I think, with our domestic standards with regard to free speech. For all those reasons, and notwithstanding the fact that I take free speech incredibly seriously, I genuinely do not think that there is a free speech issue with regard to this Bill.

[Wayne David]

Q Partly because our two professors are from Wales and Scotland, I want to ask about devolution. Most of would agree, I think, that foreign policy is exclusively a reserved matter, but we are not just talking about foreign policy now; we are talking about procurement responsibilities and public service pension schemes, the responsibility for which is, to a large extent, in different ways, devolved to the devolved Governments. I am mindful of a statement in the House of Commons Library brief that the Bill as it stands will modify

“the executive competence of devolved ministers”,

and because of that the devolved institutions will need to pass a legislative consent motion. That might be politically contentious; therefore, the Act might not automatically apply to the three parts of the United Kingdom we are talking about. Also, in Northern Ireland, public services pension schemes are exclusively in the hands of the Northern Ireland Assembly, which is not currently meeting. How will it agree a legislative competence order? Presumably, unless the Secretary of State takes powers that are not prescribed in the Bill, this legislation will not apply to Northern Ireland. Would you care to comment on that?

Professor Tomkins: With your permission, I will jump in on that. First, I have to say that the question of legislative consent has got a long way out of control. By that I mean this: absolutely, the United Kingdom Parliament should seek and obtain the legislative consent of the devolved Administrations and devolved Parliaments if the United Kingdom is seeking to legislate on matters which it has chosen to devolve to democratically elected legislatures away from Westminster, but that is not what is happening here—