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.