Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Boateng Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Boateng (Lab)]

My Lords, this Bill is ill judged, ill drafted and ill timed. It offends on all three of those points. It is ill judged because it is brought forward purportedly with a narrow political purpose, and one that might be felt to be in some quarters unexceptional. However, it goes far beyond that, because it will have a widespread and chilling effect on decision-making around ethical investment, environmental considerations and human rights. It will have a disastrous consequence globally in all three of those areas, while purporting to deal with one particular narrow mischief that it seeks to address.

As has been pointed out already in our deliberations, it is ill drafted because of its extremely loose terminology —unprecedentedly loose in its references to moral and political considerations. It is open to the widest of interpretations and gives exceptional powers to Secretaries of State, which will put them at odds with national parliaments and assemblies and with local government. It will create constitutional confusion and conflict.

It is ill timed because it is being introduced into our Parliament at a particular moment in history when there is widespread concern about human rights violations in sovereign states, which are causing much wider concerns, about the actions of some sovereign states in invading the territories of others and about conflicts, with international and domestic impacts, around the illegal occupation of areas of sovereign states in our world. Frankly, nothing could be more designed to impact adversely on community cohesion than this Bill or to yet further undermine the reputation of this country as an upholder of international law. It therefore offends on all three points.

I have to say that I have been an activist in relation to boycotts. I was a member of a local authority which in December 1983 passed a resolution against apartheid and in support of Nelson Mandela and other political prisoners in South Africa. Had this law been in place at the time, it would have put us in immediate conflict with the law and been illegal: there is no doubt about that. Yet we as a local authority in London at that time represented the voice of Londoners on apartheid. They felt that apartheid was morally and politically wrong—all things that are apparently illegitimate in this piece of legislation. Well, Londoners were right and government was wrong. Surely on all sides of the House we can agree that sometimes that happens.

What really matters in the world is not what Governments say or do but what people say, do and think. People matter more than Governments. If the Minister is concerned about sowing confusion internationally, I tell her as someone who is proud to have had the job of representing Crown and country abroad that the saving grace of Britain’s reputation in South Africa was not its Governments, of any political persuasion—I sought to represent Her Majesty’s Government at a time of considerable concern in South Africa and globally about Iraq—but its people. Trade unions, churches and the Mothers’ Union in Brighton led a boycott in relation to South African origins in that city which is remembered to this day in East Brighton in South Africa. So, whatever the reputation of the British Government, the British people are respected because of their steadfast belief in human rights and their activism and willingness to do something about it. It is that activism and willingness that are attacked by this Bill.

I draw to the attention of the House the proper concerns of the Society of Friends—the Quakers—about this Bill in its helpful briefing to us:

“We know from experience that grassroots action can be an effective, peaceful way to bring about lasting positive change. In severely limiting the ethical decisions that public bodies can make, we are concerned that the Bill restricts Quakers and other people of faith from putting their faith into action by campaigning on matters of conscience, particularly at the local authority level where opportunities for citizens to influence democratic decisions are greater”.


The Society of Friends is right. The Government have to answer them, and all people of faith and conscience concerned about human rights abuses, apartheid and a range of issues, and tell them why it is wrong for them to support local action and public authorities standing up for the environment, human rights and the values that our country surely represents.

The Bill limits and chills action in all those areas. The exceptions are too narrowly defined, in that they fail to cover human rights. The Bill exceeds its stated purpose in the Conservative Party’s manifesto. It provides the Secretary of State with exceptional and unnecessary additional powers; it places unnecessary and cumbersome restrictions on public authorities; it limits the ability of local authority pension funds to perform their stewardship responsibilities; and it offends in every way against the very best that this nation represents. For that reason, we need to scrutinise it in a way that ensures that it does not leave this place as it is now. If it does, it will destroy the reputation that this country has built up over many years. We must not allow this Government to do that—not in their zombie year.

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[Baroness Neville-Rolfe (Con)]

My Lords, I thank all those who have contributed to today’s debate in support of the Bill, including my noble friends Lady Noakes and Lord Wolfson of Tredegar, the noble Baroness, Lady Deech, and the noble Lords, Lord Stevens of Birmingham and Lord Verdirame. I hope to convince many more noble Lords to do the same during our Committee discussions. Valuable contributions have been made today from all sides of the House. I would like to address the main themes of what has been a hotly contested debate and some of the questions raised by noble Lords.

Anti-Semitism is often referred to as the world’s oldest hatred; unfortunately, it is still very much alive. Since the 7 October attacks, we have seen a surge in anti-Semitic incidents in the UK. The Community Security Trust recorded its highest-ever total of anti-Semitic incidents in 2023, and 66% of these incidents occurred after 7 October. Many British Jews are understandably scared. Some Jewish schools in London even temporarily closed their doors over security fears.

Now more than ever, the Government should be taking steps to stop behaviour that could legitimise or even drive anti-Semitism. This is what the Bill does. The BDS movement is pernicious and has no place in our public institutions. That is why the Bill has been widely supported by the Jewish community in the UK. It has been endorsed by the Jewish Leadership Council and the Board of Deputies of British Jews.

The reasons for this were persuasively outlined by my noble friend Lord Wolfson of Tredegar, citing some telling examples from the UN, local government, supermarkets and universities. I am very grateful to him for coming to make the case against BDS, and doing it so clearly. Boycott and divestment campaigns undermine community cohesion and can confuse the Government’s foreign policy, so it is vital that we deal with this issue as we promised in the 2019 manifesto.

We have taken care to keep the scope of the Bill narrow, so that it applies only to the procurement and investment decisions of public authorities, as defined in Section 6 of the Human Rights Act 1998. Legislation brought forward in other countries on this issue, such as in some states of the United States, has gone beyond this.

I have read the report on the Bill that was prepared by the Constitution Committee and referenced by the noble Lords, Lord Collins of Highbury and Lord Shipley, and the noble Baroness, Lady Chapman, and I thank the committee for its useful contribution to this debate. I will take the opportunity to respond to some of the points that it raised, and to tackle points that have been raised during this debate.

First, concerns were raised by the noble Baronesses, Lady Chapman of Darlington and Lady Janke, and the noble Lord, Lord Browne of Ladyton, and others, about Clause 4, which prohibits public authorities from making statements indicating that they intend to boycott or divest, or would if it were legal to do so. This provision is a vital addition to the Bill. Such statements can be just as divisive as boycotts that are implemented, and have been widely condemned by Jewish groups. As expressed by the noble Lord, Lord Stevens of Birmingham, it is vital that the prohibition also applies to statements indicating that a public authority would boycott if it were legal to do so. This is because, in 2014, Leicester City Council passed a resolution saying it would boycott produce from Israeli settlements in so far as legal consideration allowed. Community cohesion was, of course, at the heart of the party’s manifesto commitment, and that is essential to fulfilling it.

I explained in my opening remarks that that provision will not prevent elected officials, such as local councillors, expressing their support for boycotts or divestment campaigns. The distinction has been made clear in the Bill’s Explanatory Notes, so it is not necessary to state that in the Bill. The Bill will restrict individuals from making these statements only when speaking on behalf of a public authority, which do not have human rights guaranteed by the European Convention on Human Rights. The clause has been drafted narrowly and will not in any way prevent public authorities making statements on foreign policy that do not express the intent to boycott or divest.

The noble Baroness, Lady Chapman of Darlington, asked what would happen if an academic expressed their support for a boycott at the same time as their university breached the ban, and how that would be investigated. An academic would be considered to be speaking on behalf of the university in the context of the Bill only if they had a role in the university’s decision- making process for public investment and procurement decisions, which I hope deals with her point.

The noble Lords, Lord Hain, Lord Boateng, Lord Davies of Brixton and Lord Oates, and the noble Baroness, Lady Bennett of Manor Castle, among others, raised their concern that this Bill would have prohibited local authorities from boycotting South Africa in the 1980s, and mentioned their own activities at the time. However, the movement to boycott South Africa was successful because of a concerted international effort led by Governments across the world. Although public authorities played a role—

[Lord Boateng (Lab)]

The Prime Minister of Great Britain at the time, Margaret Thatcher, consistently opposed boycotts in every international forum and consistently opposed the role of local government, churches, trade unions and others in extolling the virtue of boycotts. She was totally opposed to boycotts. The Minister really must take care in these assertions, because what she said simply does not bear any examination at all.

[Baroness Neville-Rolfe (Con)]

I was going to say that, although public authorities and individuals played a role, it was by acting in concert with the UK Government that we were able to pressure the South African Government—

[Lord Boateng (Lab)]

The UK Government consistently opposed local authorities. It is simply not true to say that the GLC or any other local authority acted in concert with Margaret Thatcher’s Government. That is nonsense.

[Baroness Neville-Rolfe (Con)]

We will move on. Obviously, I agree that the history of—

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Boateng Excerpts

Committee stage
Wednesday 17th April 2024 Lords Chamber

[Lord Stevens of Birmingham (CB)]

May I offer a constructive suggestion on the clarity that might be adduced between now and further stages? Picking up on the question of the noble Baroness, Lady Blackstone, as I understand it, in 2003 the first case before the court to answer the question was Poplar housing association, where it was deemed that Poplar was a functional public authority under the Human Rights Act. That takes us to the useful report that was referred to by the noble Baroness, Lady Noakes, from the Lords and Commons Joint Committee on Human Rights back in 2003-04, entitled The Meaning of Public Authority under the Human Rights Act, which gets to the very matter we have been discussing. Obviously, jurisprudence has developed substantially since then. If the Minister could set out in writing how the Government regard the situation as having evolved since this very clear statement of the answer to the question we are struggling with this afternoon, that would perhaps nail the matter.

[Lord Boateng (Lab)]

The Minister has been enormously forbearing and we are very grateful for that. I wonder whether she could help us in this regard in relation to cultural bodies—here I must declare an interest, as an independent non-executive director of the Royal Philharmonic Orchestra. What would be the position of an orchestra that received some funding—by no means the majority of its funding—from the Arts Council, and which determined that, in the aftermath of an invasion of a sovereign nation by another sovereign nation, it no longer wanted to perform supportively of, say, the Bolshoi Ballet? What would be the position of such an orchestra, or of a board, that made that decision because it saw a real reputational risk, in the aftermath of the invasion of a sovereign country, of appearing in support of the national ballet company of the invading nation?

[Baroness Neville-Rolfe (Con)]

I understand the question. Of course, we now have government sanctions against Russia, so the question is wider. The suggestion made by the noble Lord, Lord Stevens, is a good one, which would perhaps help us to move forward. I have already said that I will look carefully at the questions raised by the noble Baroness, Lady Chapman. The example of the noble Lord, Lord Boateng, is of a slightly different kind, asking rather the same question. Perhaps I can come back on that at the same time.

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[Lord Warner (CB)]

My Lords, we are dealing with a Bill that is in highly controversial territory. If we have sloppy definitions in the Bill, it will encourage litigation. It would be a strange thing if we passed a Bill with a lot of problems around definitions that causes, over time, more people to raise issues around sources of investment through the courts. With all due respect to the Government of Israel, from time to time they have shown quite an enthusiasm for using litigation to make their points.

Also, picking up from the last group of amendments, we live in a rather different time in terms of who raises money for public services, particularly capital money for investments. If we take health and care, the areas I know something about, there is a lot more interest in the idea of going into the private sector—private equity and PFI being good examples—to try to raise money to build facilities of some kind or another for which the public sector has found it difficult to find the money. People who raise funding and use it to provide public services perform a kind of public function. If we have a sloppy Bill, they leave themselves exposed to probing of where their sources of money come from. You then run the risk of driving these people away from the kind of investments in public service that we may need to get some of our old capital structures improved over time. I suggest to the Committee that if we do not tighten up these definitions, we run a series of risks that are self-defeating to any Government.

[Lord Boateng (Lab)]

I am very grateful to my noble friends for these probing amendments, and even more grateful after hearing the contributions from Members opposite that they have elicited. A number of very serious questions have been raised about ambiguity and lack of clarity.

I hope that the Minister is not tempted to reply with words that are meant to reassure us, such as, “Don’t worry. Everything will be all right. The Secretary of State will decide”. I must confess to the Minister that, the older I get, the less confidence I have in Secretaries of State. I suspect that, in a few months’ time, she will begin to have less confidence than she currently has. There is a good reason for that: all of us—I emphasise this—whatever side of the House we are on, need to be wary of overpowerful government.

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[Baroness Neville-Rolfe (Con)]

Perhaps I might continue on the points raised in the debate and come back to that point. It is a very reasonable question but I am not going to answer it without advice. However, there are no criminal sanctions in this Bill, which there often are in the Bills we consider in this House.

There may be a small number of cases where charities are delivering public functions; they would therefore be captured in respect of those functions. However, it is important to note that it does not mean that a charity is a public authority just because it is in receipt of public funding.

The Bill will not apply to charities’ private functions. For example, for universities, decisions that are part and parcel of delivering higher education would be public functions so they would be in scope of the ban. If a charity did have public functions in scope of the ban, it would apply only to investment and procurement decisions made within the public functions. That is a point that I need to emphasise. Therefore, the ban would not restrict how such bodies decide, for example, to distribute humanitarian aid, which was the subject of the earlier debate.

[Lord Boateng (Lab)]

I think the Minister, or those who advise her, has misunderstood the point I raised in relation to the orchestra. The orchestra is putting on a concert version of “The Rite of Spring” as part of a Stravinsky festival. That festival is being held in a number of cities throughout the world. It is booked to appear at the new opera house in Dubai. It puts out a tender for ballet companies to provide the dance section of “The Rite of Spring” for this concert version. It specifically precludes in its procurement—so perhaps those who advise the Minister can reflect on this—the national ballet company of a country that has recently invaded a sovereign nation because it does not wish reputationally to be linked with that national ballet company. That is quite clearly a procurement. Is the Minister saying that that would not be covered by the Act and that the fact that the orchestra concerned receives a proportion of its funding from the public purse does not make it fall within the ambit of the Act? It is to that question specifically that an answer would be helpful. If she cannot give that answer, it demonstrates very clearly the concern about ambiguity that all contributors to this debate have articulated.

[Baroness Noakes (Con)]

The noble Lord, Lord Boateng, has concentrated on the procurement decision, but before you get to decide whether a procurement decision is relevant, you have to decide whether it is a public authority—so it will come back to whether the orchestra is a public authority before getting to any issue about whether a procurement is covered.

[Lord Boateng (Lab)]

That is what we want an answer to: is it a public authority for that purpose because it receives public funding?

[Baroness Neville-Rolfe (Con)]

I am glad that we have focused on an individual example because, in my experience, this always helps us to clarify our own thinking. I think that, if the noble Lord, Lord Boateng, will allow me, I will take the orchestra example away, along with the example given by the noble Baroness, Lady Chapman, work out the right approach and get back to noble Lords, perhaps in discussions outside the Chamber.

We all want the same thing: to make sure that the Bill applies to the right bodies in the right way. That is what we are seeking to do, which is why we started with human rights legislation, which is often a popular start, for good reasons, to legislation. However, we have, as we do, scrutinised the detail of legislation today and have come up with some extremely good questions. It behoves us to go away. I am sure we can find good answers and use them to improve the Bill, which is, as I said when I introduced the Bill, what we are determined to do to get a good Bill that leaves this House in the right place and delivers on our manifesto commitment.

I turn now to Amendment 25, which seeks to probe whether a national governing body of sport that is in receipt of public funding would be in scope of the Bill. It raises some of the same questions and issues that we are going to consider. It is possible that a governing body of sport could be in scope of the Bill. If a sporting body is considered to be a public body under the Human Rights Act, on the basis that it exercises some public functions, the ban would apply only to the public functions exercised by that body, but a sporting body being in receipt of public funding would not in itself be enough for it to be considered a public authority. These bodies play a significant public role.