Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Etherton Excerpts

2nd reading
Tuesday 20th February 2024 Lords Chamber

[Lord Etherton (CB)]

My Lords, I welcome the Bill for the reasons explained by the Minister. My focus today is on one particular issue: the international law exception to Section 1 in paragraph 6 of the Schedule. Consistently with the policy objectives of the Bill, that exception must be qualified to ensure consistency between the view of the public body decision-maker and that of central government about the meaning and effect of the obligations under international law relied upon by the decision-maker. I am grateful to the Minister for seeing me to allow me to explain my concerns.

The policy objectives of the Bill are described in paragraphs 5 and 6 of the Explanatory Notes. In summary, the Bill is intended to give effect to the Government’s view that it is not appropriate for public bodies to accede to campaigns to persuade them not to buy goods or services associated with particular foreign countries for political or moral reasons,

“except where to do so is positively consistent with the UK’s foreign policy as determined by the Government”.

The international law exception in the Schedule does not reflect that policy background as it leaves entirely to the public body decision-maker the right to reach its own conclusion about whether the decision, or anything done further to it, would place the United Kingdom in breach of its obligations under international law. There are, as Members of the House are aware, many sources of international law. They include treaties, custom deriving from state practice—that is, customary international law—general principles of law, international conventions, advisory opinions of the International Court of Justice and resolutions of the United Nations General Assembly, to mention but some. International humanitarian law—the law of war and armed conflict—is part of international law. Many aspects of international law derived from those sources can be highly contentious. One has only to think of the disagreements expressed in this House over the past few years on the proper meaning and effect of the refugee convention 1951 and the European Convention on Human Rights.

Under the international law exception, it is sufficient for the public body decision-maker to form a reasonable view of the meaning and effect of the applicable international law, even if that view is different from the Government’s. That is entirely at odds with the policy stated in paragraph 6 of the Explanatory Notes that decisions of public bodies about procurement and investment based on political or moral disapproval of a foreign state are permitted only if the decision

“is positively consistent with the UK’s foreign policy as determined by the Government”.

The reality is that the international law exception is a recipe for dispute and litigation about the United Kingdom’s international law obligations and the reasonableness of the decision-maker’s opinion about those obligations. The easiest way to address these problems is to make implementation of any decision based on the international law exception dependent on prior confirmation by the Secretary of State or the Attorney-General that the decision is in accordance with international law.

Economic Activity of Public Bodies (Overseas Matters) Bill

Lord Etherton Excerpts

Committee stage
Tuesday 7th May 2024 Lords Chamber

Insistence on international labour standards in supply chains is an important way of improving the conditions of labour in the third world and, at the same time, preventing good employers in the UK being undercut by bad, and unlawful, conditions abroad. The right to insist on such matters of international law is surely an important element of local democracy. It does not detract from Westminster’s ability to enforce international law on a wider basis. I look forward to hearing the Minister’s view on my amendment.

[Lord Etherton (CB)]

I support Amendments 18 and 29, tabled by the noble Lord, Lord Verdirame, to which I have added my name. In view of what has been said in detail by the noble Lord, Lord Verdirame, and the noble Baroness, Lady Noakes, I can be very short.

Put very simply, the international law exception in the Schedule, as currently worded, leaves entirely to the relevant public body the right to reach its own conclusion as to whether a failure to boycott or a positive decision to make a procurement in relation to the foreign state would place the UK in breach of its obligations under international law. This is contrary to the Government’s own policy in paragraph 6 of the Explanatory Notes that the obligations under international law relevant to a BDS decision must be determined by the Government and not by individual relevant bodies. As we all know, many aspects of international law derived from numerous sources can be highly contentious. One has only to think of disagreements expressed in this House over the past few years on the proper meaning and effect of the refugee convention and the European Convention on Human Rights to see that that is so.

Paragraph 6 of the Explanatory Notes states that decisions of public policy about procurement and investment based on political or moral disapproval of a foreign state are permitted only if the decision is,

“positively consistent with the UK’s foreign policy”—

I emphasise—

“as determined by the Government”.

The Minister, in response to me on Second Reading, was not entirely consistent in relation to this matter. She said:

“This exception is necessary to ensure that public authorities are not forced to make a decision which could put the UK in breach of its obligations under international law. Public authorities cannot have their own subjective views on what constitutes a breach of international law”—


which is fair enough. She continued:

“They must reasonably consider the decision relevant to the UK’s obligations under international law”.—[Official Report, 20/2/24; col. 595.]


Therefore, there is an insertion there of “reasonable consideration” but no reference at all to the Government’s policy stated in the Explanatory Notes that foreign policy is to be determined by the Government and not by individual public entities.

In short, we simply cannot have disputes before our domestic courts about the proper meaning and effect of international law sources relevant to decisions under the Bill going through the High Court, the Court of Appeal and the Supreme Court at great cost to the public as well as, of course, to the ratepayers and the council tax payers of the relevant body.

[Baroness Altmann (Con)]

My Lords, I will briefly support the two amendments, one from the noble Lord, Lord Verdirame, and the noble and learned Lord, Lord Etherton, and the other from my noble friend Lady Noakes and the noble Lord, Lord Pannick. I urge my noble friend the Minister to consider carefully the purpose of these amendments.

I completely support the Bill and I am grateful to the Government for bringing it forward, although I recognise that not all noble Lords will be of the same mind as myself. However, I stress that using a test such as that proposed in paragraph 6 of the Schedule, as to whether the decision would place the UK in breach of its obligations under international law, is problematic.