Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Davies of Brixton Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Davies of Brixton (Lab)]

My Lords, this is a political Bill, a bad Bill, an unnecessary Bill and a counterproductive Bill. As other speakers have mentioned, it is also one of the most incompetently drafted Bills that we have had before us. One example which has been mentioned is that it fails to provide a clear definition of what constitutes a public body, which is clearly a central issue. Can the Minister enlighten the House on a more precise definition of a public body?

There is much to say, but I will focus on three points. First, the Bill represents arrogant overreach by an incompetent Government who are well past their sell-by date. Secondly, even if we were to accept the Bill’s premise—which I do not—it is not just unnecessary but counterproductive. Thirdly, government Ministers, in proposing the Bill, commit the offence that they claim needs to be prevented by the Bill.

My first point is that the Bill is clearly one more example of arrogant overreach. Michael Gove, in opening the Second Reading in the Commons, stated that

“UK foreign policy is a matter for the UK Government”.—[Official Report, Commons, 3/7/23; col. 586.]

I have to disagree. UK foreign policy is a matter for us all, individually and through our representative organisations and those working on our behalf. As free citizens, we are all entitled to exercise rights relating to foreign affairs, individually and through organisations. One of the strengths of this country is that there are multiple locations of power and responsibility. The assumption that only the Government are responsible for relationships with foreign countries destroys that strength. That arrogance was made clear when the Minister, in introducing the Bill, used the word “subordinate” to refer to other public bodies. It is a question of partnership; it is not an issue of subordination.

Other speakers have drawn attention to issues where the views of the Government have lagged behind those of other public bodies. Apartheid South Africa is only one example, although the speech by my noble fried Lord Hain was particularly powerful. I was also pleased that my noble friend Lord Boateng recalled the occasion when together we voted, as members of the GLC, to declare freedom for South Africa and in support of Nelson Mandela.

I add that this is not a question of being right or wrong on these issues; what is good is that there is a variety of views. I am not claiming that local authorities and local government pension schemes will always be right—sometimes they are wrong—but it is the variety of views put into the public debate that is so important.

My second point is that, even if we accept the Bill’s premise, it is not only unnecessary but counterproductive. I am not a legal expert, but, over the years, I have been the recipient of much legal advice about the powers and responsibilities of public bodies. That includes primarily local authorities and local government pension schemes, both of which would be caught by this Bill. I am sure that, in Committee, we will discuss in detail the problems created for such bodies by the Bill, but I will make a more general point in this debate. In broad terms, the law already provides that, when decisions are taken by public bodies, they are required to take account of relevant matters and to ignore matters that are irrelevant. My question for the Minister is: how does the Bill affect those obligations? It either simply restates the law or it contradicts those requirements. My concern is that, at best, it will confuse the position, and, at worst, it will require public bodies, whether local authorities or pension funds, to take into account irrelevant matters when taking decisions, including in particular the views of the national Government.

My third point is that government Ministers, in proposing the Bill, commit the offence that they claim needs to be prevented. The argument here is simple. Michael Gove stated at Second Reading that the Bill

“provides protection for minority communities, especially the Jewish community, against campaigns that harm community cohesion and fuel antisemitism”.—[Official Report, Commons, 3/7/23; col. 586.]

But there is no reference in the Bill to anti-Semitism. What it does mention is Israel, which is not the same thing.

I enter this debate with some trepidation. It is not for me to say what constitutes anti-Semitism, but look at the definition of anti-Semitism provided by the International Holocaust Remembrance Alliance. It makes it clear that

“criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic”.

That point seems to have been lost in this debate, with a few speakers saying explicitly that supporting action against Israel is inherently anti-Semitic. That is itself an anti-Semitic claim, according to what the definition goes on to say. As an example of the manifestations of anti-Semitism, it describes anything that

“might include the targeting of the state of Israel, conceived as a Jewish collectivity”.

But that is exactly what this Bill does—reinforced by comments that have been made today.

I have no idea whether my time is up, because the Clock did not start properly, so I will exploit that opportunity. We know what the Government’s real intention is for this Bill, and it was clearly set out by the noble Baroness, Lady Warsi. We know what was in the minds of the Government in introducing this Bill. I have to ask the noble Baroness, Lady Deech, following her remarks, whether she really believes that Michael Gove is her friend in this debate. The noble Lord, Lord Johnson of Marylebone, who is not in his place, said that the Government have good intentions with this Bill, but I do not believe that they have any good intentions with it. It is an example of gotcha legislation, trying to paint those who take different views with the crime of anti-Semitism, which is clearly untrue. As other speakers have identified, instead of focusing on these issues which are symptoms of anti-Semitism, we have to tackle the underlying causes.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Davies of Brixton Excerpts

Committee stage
Wednesday 20th March 2024 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want to return, very briefly, to something the noble Lord, Lord Mann, raised earlier. I can understand in the broader sense why universities have been included, because very often it has been universities that have been at the cutting edge of popularising boycotts. They have taken a wide range of forms—and not just in terms of what is sold or invested in. As the noble Lord, Lord Johnson, pointed out, it could be denying people research, not letting Israeli academics come over to speak or whatever. There are all sorts of ways that this happens. So, I understand why the university sector is in scope. My problem is that it is not clear to me how a Bill like this can do anything other than attack academic freedom, which I am interested in defending. I think we have to deal with what is happening on university campuses in a different way.

Regardless of that, the reason it is frustrating—and why I am referring to what the noble Lord, Lord Mann, said—is that, if you have a conversation with anyone outside this Chamber, if they are like me, they are worried about BDS and anti-Semitic campaigns against Israeli academics. Something has just happened at King’s College London in fact, where an event has been called off, and there is a University of Leeds chaplain in hiding —all these things are going on. Ironically, if anything, this Bill is too narrow to deal with what is really happening. The point that the noble Lord, Lord Mann, made was that the way wording happens, there are ways around it that this Bill will not deal with. He and I might differ about how we would deal with that—I think we probably would. None the less, given what a public authority is, it is understandable why universities are in here—but, as people have said, which bit of the university?

For the Minister to say “Oh, no, it wouldn’t count, student unions”, would be utterly ludicrous. From the Government’s point of view, even if I go with you, why would it not be student unions? That would be mad. They are part of what the public authority of the university is about, along with research councils and everyone else. I am not trying to encourage the Government to wipe up every part of a university to bring them in scope, but to keep saying that they are not in scope makes no sense from the point of view of the public justification for this Bill by Michael Gove when he has argued for it, and anyone else who supports it. So we do need some clarity here.

[Lord Davies of Brixton (Lab)]

My Lords, this debate has referred consistently to universities, but I do not want the point to get lost that there is an equivalent problem with local government pension schemes, where a succession of bodies take part in the decisions that are reached. Every fund has advisers, in particular advisers on ESG. The trustees are responsible for the decision, but they are under a legal obligation to give due regard to their advisers’ views. Now, because of the encouragement by the Government, the individual funds are not actually investing the money; the money is passed on to a pooled fund that equally has its advisers and its decision-makers. Somewhere in that thread of control, someone is a decision-maker, but I defy the Minister to tell us precisely, in the terms of this Bill, who it is.

[Lord Verdirame (Non-Afl)]

My Lords, I have just a few points and questions, following the discussion we have just had. The first point is to seek clarity on whether my understanding of the last three lines of Clause 1(7) is correct. I understand those three lines simply to be saying that, where the decision-maker is a collegiate body, the duty to have regard applies to the individuals within that collegiate body who are taking the decision. That is how I read those three lines, but I may be missing something.

The second point arises from the comment that the noble Lord, Lord Johnson of Marylebone, made about universities. I suppose it is a point that comes up both under these amendments but also under the next amendments and in particular Amendment 8. Paragraph 20 of the Explanatory Notes, which speaks to Clause 1, states:

“The ban in Clause 1 is not intended to prohibit a higher education institution from deciding to terminate a collaboration with a foreign university on the grounds of academic freedom”.


I read that as implying that, other than on those grounds, the ban would apply to a decision to terminate a collaboration with a foreign academic institution. I would like some clarity on this, because I was a bit surprised to see that my reading of the definition of “procurement decision” would not necessarily have included a collaboration with a foreign academic institution as a procurement decision. It certainly is not an investment decision, but is a collaboration with a foreign academic institution in scope of the ban potentially? That is what I would like to understand. If so, it raises the question that the noble Lord, Lord Johnson, raised, of whether the individual grant holder who has, for example, a research collaboration with a foreign institution, is within scope of Clause 1. That is not clear to me.

--- Later in debate ---

[Lord Davies of Brixton (Lab)]

The Minister used the word “pressurised”. Did she do so advisedly—“pressurised” as opposed to “called on” or “suggested”? Is “pressurised” defined in the Bill?

[Baroness Neville-Rolfe (Con)]

I think I used the word “pressure”. Certainly, I was reading “pressure”, but perhaps I blurred the wording and said “pressurised”. I could equally have used “influenced” or some other word. I was trying to explain what we were getting at on the education side of things.

I have a couple of examples of student union pressure, which I mentioned earlier. Warwick student union held an all-student vote in 2020 to pressure the University of Warwick to fully divest from all unethical industries and release all investments. That included divesting from companies in support of a boycott of Israel, and divesting from international companies that are complicit in violations of Palestinian rights. There was also the example of Sussex University, which I mentioned a little earlier.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Davies of Brixton Excerpts

Committee stage
Wednesday 17th April 2024 Lords Chamber

[Baroness Janke (LD)]

My Lords, I thank the proposers of these amendments for offering an opportunity to establish, as many have said today, some precision and clarity on the range and definition of the public bodies referred to in the Bill. The Minister has an opportunity to reassure us and many groups who fear the implications of this Bill.

In Amendment 22, we are talking about schools or nurseries. The Minister has said we are talking about procurement, but do the Government really intend that school governors should sit poring over the school meals procurement to see whether they are contravening the terms of this Bill in any way? Indeed, as the noble Lord, Lord Deben, said earlier, would they also contravene the terms of the Bill even in talking about it and taking advice?

Do the Government intend that charity commissioners and trustees should take into account the implications of this Bill, and perhaps face vexatious challenges to contest some of the decisions that they have already made? The fact that the definitions are so poor, as many people have said here today, will leave open legal action and vexatious possibilities of weaponising this legislation, by the whole scope that seems to be covered. But the Minister can reassure us today, or in writing, that the list of public bodies covered is, as the noble Lord, Lord Willetts, said, closely defined and clearly identifiable by those whom it affects.

Particularly concerning, as highlighted in Amendment 26, is the implication for charitable organisations delivering public functions in terms of overseas aid and humanitarian work. Often founded on moral principles, as the right reverend Prelate said, many of these organisations have foundations which relate to moral principles and values, which they take into account when taking their decisions, whether on procurement or on investment. I believe territorial considerations must also be key to the functioning of these groups and charities. I agree we need a clear definition, and I would also like to understand and be reassured by the Minister on the reason for the additional powers being given to Ministers.

On the last amendment on this list, we should really have a much better idea—I think the noble Baroness, Lady Blackstone, who said that we are swimming through a sticky pudding, was absolutely right. We are totally unclear about the terms and the scope of this Bill, and I hope that we may be reassured in the course of this Committee.

[Lord Davies of Brixton (Lab)]

I have two questions relating to the issue of what constitutes a public body. My major interest in this Bill is Clauses 12 and 13, about local government pension schemes. It is interesting that it requires a separate section of this Bill to deal with local government pension schemes; that clearly indicates that these organisations are not public bodies. The Government’s commitment was in relation to public bodies and yet the Bill is being extended to these other organisations, which require their own section in the Bill, as they are clearly not covered by the general term “public bodies”. Perhaps the Minister could confirm or explain that particular point.

I have a different point relating to pension schemes. Some of these public bodies that we have been talking about have their own funded pension schemes, which are making investment and procurement decisions. As I understand it, because they are separate trusts, they are not themselves public bodies. But they belong to a public body and they are associated with the public body, so it is possible, within the bounds of trusts law, for those pension scheme trustee bodies to consider a decision that might potentially fall foul of this legislation. Therefore, we have the odd situation that the trustees can discuss these matters, but presumably the sponsoring organisation, which does count as a public body and is covered by the Bill, cannot discuss what the trustees whom they nominate should or should not be doing. There is a certain contradiction here, and again I invite the Minister to explain how that will operate in practice.

[Baroness Randerson (LD)]

My Lords, I will briefly go back to the Government’s own list of public bodies on GOV.UK. Of that list of public bodies, there are 18 listed for the Department for Education, none of which is a university. The Minister referred to overlapping definitions in the Bill. I have been sitting here and thinking about that, and wondering where the University of Buckingham sits in the Government’s concept of where universities lie, because that is a private university but one which is fulfilling exactly the same functions as all the other universities in the UK. Those other universities are, of course, exempt charities and so we are on a whole series of conflicting paths here, with just one aspect of the definition of public bodies that this Bill seems to wish to encompass. I raise these issues so that the Minister can perhaps give us some of her thoughts on these overlapping definitions and where they actually sit within the Bill.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Davies of Brixton Excerpts

Committee stage
Tuesday 14th May 2024 Lords Chamber

[Lord Hannay of Chiswick (CB)]

My Lords, I will speak in support of the noble Baroness who has just spoken on Amendment 45, as well as Amendment 27 in the name of the noble Baroness, Lady Drake. As the noble Baroness, Lady Noakes, has eloquently drawn to the attention of the Committee, this is another of the points at which this legislation’s handling of Israel arises. The issue is the elision that has been made by the Government between the State of Israel and the Occupied Territories—the West Bank, the Golan Heights and east Jerusalem. Within the Occupied Territories there is a mass of illegal settlements, which the international community and the British Government regard as illegal. A whole rash of outposts have now been established from those settlements, which are also illegal. The elision between the State of Israel and the settlements is causing infinite trouble to this Bill, and I hope that the Minister will find some way to sort this out, because it really needs to be sorted out.

There is no disagreement, between the Government and those of us who wish to see this sorted out, about the settlements in the West Bank, Golan and east Jerusalem. We all agree that they are illegal under international law. I think we therefore agree—the Minister was very clear about this at Second Reading and when it came up in earlier amendments—that for British companies, pension funds or whatever else to invest in those illegal settlements, even unwittingly, would be to create an illegality. Presumably, the Government do not want a British company or a British pension fund to do that—and I hope that we would not want it either.

These amendments would make it somewhat easier for the bodies covered by the Bill to make sure that they were not being drawn into illegality in any way and thus acting in a way that would be contrary to government policy. I hope that the Minister will give careful consideration to the issue, because I am afraid that the elision between the State of Israel and the Occupied Territories is really damaging to the Bill’s prospects.

[Lord Davies of Brixton (Lab)]

I have made no secret that this is a bad Bill that is badly drafted, and I spoke against it at Second Reading. In this debate, my suggestion that we should not agree Clause 12 is narrowly focused.

Local government pension schemes should be treated in exactly the same way as every other funded occupational pension scheme—the point made by my noble friend Lady Blackstone. I agree totally with the amendments tabled by my noble friends, and I certainly support their proposals, but my question is: do we need separate legislation to cover the local government pension schemes? My strong view is that we do not; the schemes should all be treated the same. They should come under the same rules as the fiduciary duties on trustees or committees —whoever is responsible for taking the decisions—and they should be the same across the board.

I tabled my clause stand part notice just to ask what the effect would be of not having this provision. Would it mean that I achieve my objective and that, should the provision be removed from the Bill, the local government pension schemes would be treated like other pension schemes? I suspect not. I suspect that I would need a more detailed amendment that would place local government pension schemes under the same responsibilities and law as occupational pension schemes more generally. That is my objective, and I hope that we can have this debate again on Report so that all pension schemes are treated the same.

I listened carefully to the remarks from the noble Baroness, Lady Altmann, but I think her argument fails. First, there are private employers whose employees are within the local government pension scheme. Equally, there are public bodies whose pension schemes are not covered by this legislation, most obviously the universities superannuation scheme. So the division between the sheep and the goats in this respect is arbitrary. There is no consistency about—

[Baroness Altmann (Con)]

The noble Lord and I usually agree on so many pension issues—in fact, almost all of them. However, would he not agree that the fundamental difference between the local authority pension schemes and private schemes, or indeed the universities super- annuation scheme, is that the local authority pension schemes do not belong to the Pension Protection Fund and do not pay levies to it, and are therefore effectively underwritten by central government, not by local government? If a council goes bust, it is rather difficult to imagine that the burden of paying the pensions promised to local authority workers would not fall on government itself. That is indeed the reason why these schemes are not part of the Pension Protection Fund, and indeed do not pay any kind of levy. For me, that is a powerful reason—I would be grateful to hear the noble Lord’s view—why there should be a differentiation between those schemes and all other schemes. Typically, there is not, but that misses an important part of this debate.

[Lord Davies of Brixton (Lab)]

I am afraid to say that it is not that simple. Technically, the history is that the funds established by local authorities to pay the pensions of their employees were there to protect the ratepayer rather than the members. That is the history of it, but I think we have moved on from that. Certainly, the members of these schemes believe that the money they have paid is there for their benefit. What would happen if a local government pension fund were unable to pay the benefits that were due is actually an open question. There is no explicit government guarantee for the local government pension scheme.

In addition, under the present provisions of the cost-sharing enforced by the Government on the Local Government Pension Scheme, it is the members who are the residual fund source of any shortfall in money. If there is a shortfall in the Local Government Pension Scheme, the contribution from the local authority is capped; it is the members who will lose out by having to pay higher contributions or seeing their benefits reduced. It is not a simple matter of “The Government will always make things good”. Initially, the members have to make things good. If the members cannot afford it, I suspect that it is right that the Government will step in—but that is not in the rules, so there is a contingent possibility there. So the situation is far less clear-cut than the sheep and goats I identified earlier.

Of course, this all comes about because technically, I think, under present law, the administration of the Local Government Pension Scheme comes under the aegis of a public body or public authority. I am not really sure what the difference is between the different terms under the Bill. But that is not how it is perceived by scheme members. They do not see their pension scheme as being a public authority, and we should respect that. As I say, my central thought is that local government pension schemes should be treated like all other occupational pension schemes.

[Lord Sentamu (CB)]

I want to ask a simple question. At the moment, all pensions are in many ways looked at by the Pensions Regulator. Does that regulator distinguish between the local authority pension scheme and the pension scheme for me—for the Church of England —when, as you say, if there is not enough money within that pension fund, the members have to put it in? Is there a difference? Does the Pensions Regulator ever say, “Well, this is a local authority and I am going to look at them differently because the Government may put in money and I think your analysis is the right one?” If the regulator does not, why are we making a difference here?

[Lord Davies of Brixton (Lab)]

I thank the noble and right reverend Lord for his question. This comes up under group 5, where I have a lot to say about the role of the Pensions Regulator, but that comes under the issue of enforcement. Here I am just talking about the principle of how we should think about local government pension schemes. Whatever the legal niceties, my view is that they should be treated exactly like every other pension scheme.

My amendment at this stage is simply to ask: if we do not have Clause 12, does that mean that the same rules will apply to all pension schemes, including the Local Government Pension Scheme, or do I have to move a more difficult, technical amendment on Report in order to achieve that objective?

We have to remember that all pension scheme trustees are subject to the fiduciary responsibilities. In the remaining 30 seconds of my time, I think it is worth highlighting what the pensions officer of the Local Government Association said in evidence to the Public Bill Committee in the House of Commons. He said the association’s prime concern was the impact of these provisions—the way they will interfere with its fiduciary duties. He also mentioned the additional administrative costs that would be involved and having to deal with the inevitable legal challenges. So the LGA has those practical concerns. My belief is that we should just treat all schemes the same and that the trustees should be left to get on with their job of looking after their members’ money.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Davies of Brixton Excerpts

Committee stage
Tuesday 14th May 2024 Lords Chamber

These provisions are quite extraordinary. There are a number of places in the Bill where the drafters have bent over backwards to try to enact provisions that do not have the wrong effects, and some pretty tortuous drafting has resulted. In this particular case, it is absolutely manifest that there is no justification for these provisions. They do not help the purpose of the Bill and they are a very damaging incursion into an area which, as the Constitution Committee pointed out, we should be protecting: freedom of speech.

[Lord Davies of Brixton (Lab)]

I shall follow the line taken by the noble Lord, Lord Beith, who quoted from the Government’s Explanatory Notes. This is the House of Lords wording in the Explanatory Notes: it was supposedly toughened up following discussion in the Public Bill Committee in the House of Commons. So we have this explanation in front of us and I shall just quote again what the noble Lord, Lord Beith, quoted, which is that

“councillors of a local authority are not a public authority and, therefore, are not prohibited from expressing support for or”—

my emphasis—

“voting in favour of a motion supporting a boycott”.

Can the Minister give us an assurance? If councillors vote for a boycott, which they are entitled to do, according to the Explanatory Notes, and if that boycott motion is passed, enforcement action is taken and ultimately a civil penalty can be levied, is there any prospect whatever of those councillors who voted for the boycott motion being surcharged? Because the prospect of that must clearly be a limitation on their ability to speak.

[Baroness Noakes (Con)]

My Lords, as a Conservative, I believe absolutely in the right to freedom of speech, but I do not think that the limits on freedom of speech in Clause 4 are as great as some noble Lords have tried to make out. I do not think that Article 10 of the European Convention on Human Rights is something that affects the rights of individuals, and Clause 4 is fundamentally aimed at public authorities. I completely understand that there is a very small number of public authorities who can be individuals as well, but, as my noble friend the Minister explained at Second Reading and as the Explanatory Notes make very clear, the prohibition on statements is against public authorities and attaches to individuals only to the extent that they are speaking for the public authority. Even if it applies to the statements made by individuals on behalf of the public authority, the ban applies to the public authority and the enforcement action is taken against the public authority. So individuals are not targeted by Clause 4.

We have to remember that this is not an academic issue. We already know that councils are starting to pass BDS motions and they are against this Bill. We know that the student encampments are including demands or public statements on the conflict in the Middle East and on divestment. They may not get all their demands, but that is certainly where they are pushing towards. Without the Bill, I think we can be fairly sure that BDS activities and statements will continue to increase and that will have an impact on social cohesion, and a particular impact on the Jewish communities that are affected by the sorts of statements that are made.