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

Debate between Kim Leadbeater and Wayne David

Committee stage
Tuesday 5th September 2023 Public Bill Committees

[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—